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WAYNE C. STONER v. PENN-BRIXITE (01/14/55)

January 14, 1955

WAYNE C. STONER, APPELLEE,
v.
PENN-BRIXITE, INC., APPELLANT



Appeal, No. 167, April T., 1954, from judgment of Court of Common Pleas of Butler County, Dec. T., 1951, No. 91, in case of Wayne C. Stoner v. Penn-Brixite, Inc. Judgment affirmed.

COUNSEL

J. Campbell Brandon, with him Hugh S. Millar and Brandon, Millar, Rockenstein & MacFarlane, Butler, for appellant.

John N. Gazetos, with him Armand R. Cingolani, Butler, for appellee.

Before Rhodes, P. J., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Ervin

[ 177 Pa. Super. Page 190]

OPINION BY ERVIN, J.,

This is an action in trespass for personal injuries and property damages resulting from a collision between an automobile and a truck. Defendant filed a cross-suit for property damage to its vehicle and cargo. The cases were tried together and a verdict was rendered in favor of the plaintiff. Defendant filed motions for new trial and for judgment n.o.v. The lower court refused these motions and this appeal followed.

[ 177 Pa. Super. Page 191]

It is our duty to review the testimony in the light most favorable to plaintiff appellee, resolving all conflicts therein in his favor, and giving him the benefit of every fact and inference of fact reasonably to be deduced from the evidence; McMillan v. Mor Heat Oil and Equipment Co., Inc., 174 Pa. Superior Ct. 308, 101 A.2d 413; Coradi v. Sterling Oil Company, 378 Pa. 68, 105 A.2d 98.

On August 14, 1951, at approximately 10:45 o'clock p.m. a collision occurred on State Highway Route No. 8 a short distance south of the City of Butler involving an automobile driven by Wayne C. Stoner, the plaintiff, and a truck owned by Penn-Brixite, Inc., the defendant, and driven by its employe, Herman Frazier. The accident occurred on the improved part of a three-lane highway which was thirty-three feet wide. The plaintiff was proceeding toward the City of Butler in the right-hand lane of the three lane highway headed north. The night was clear, the roadway was dry. There was a line of traffic comprising five or six cars traveling in a southerly direction approaching plaintiff in the lane on the other side of the middle lane. The leading vehicle in this line was a car driven by a Mrs. Smolen which was followed by the defendant's truck and the other cars. The car driven by Mrs. Smolen slowed down and she signaled her intention to make a left-hand turn across the highway. At that time the defendant's truck moved into the center lane of traffic and attempted to pass the car driven by Mrs. Smolen and it was while passing the Smolen car that a collision occurred between plaintiff's car and the defendant's truck. There is some dispute as to the exact location of the place where the accident occurred, whether it was in a right-hand curve of the highway or in a straight stretch immediately south of the curve. Plaintiff testified he was entirely

[ 177 Pa. Super. Page 192]

    in his right lane of the highway at the time the collision occurred. The defendant's driver and another witness testified that the collision took place in the center lane of traffic. The photographs introduced in evidence disclosed that the plaintiff's car was struck on the left front. After the accident the plaintiff's car was in the center lane of traffic, and the defendant's truck on its side partly in the southbound lane of traffic. There is no evidence that either vehicle was exceeding the speed limit.

The pivotal conflict in the evidence in this case concerns the exact place of contact and collision of the automobile and truck. Appellant contends the collision occurred in the center lane of the highway and appellee claims his car was struck while he was in the right-hand lane. The testimony clearly discloses that immediately prior to the accident the appellee was traveling in his own lane, his lights were properly dimmed, he was traveling between forty and forty-five miles per hour and his car was being operated in a normal and proper manner. It is also clear that just prior to the accident the appellant's driver had driven the truck into the center lane and was in the act of passing the car ahead of him, the driver of the car having signaled her intention to make a left-hand turn across the highway. Appellant asserts the collision occurred as a result of appellee's inability to make the curve causing appellee to cross into the center lane. Appellant's driver testified: "A. Well, I kept coming, because the car itself was coming all right, but as I got even with Mrs. Smolen he was coming into ...


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