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March 14, 1955


Appeals, Nos. 282, 288 and 299, Jan. T., 1954, from judgments of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1953, No. 5243, in case of Vincent DeLuca et ux. v. Manchester Laundry and Dry Cleaning Company, Inc. and Charles Chiardio. Judgment against corporate defendant reversed; judgment for individual defendant affirmed.


Peter P. Zion, with him Leonard A. Green and Lynwood F. Blount, for defendant, appellant.

Maurice Freedman, with him Herbert H. Hadra and Robert H. Arronson, for plaintiff, appellant.

Howard R. Detweiler, with him Frank R. Ambler, for defendant, appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, J.j.

Author: Stern

[ 380 Pa. Page 485]


The problem here presented concerns the determination of the proximate cause of the accident in suit.

Mifflin Street, in Philadelphia, is 26 feet wide from curb to curb. It is a one-way street open only for eastbound traffic. The business establishment of defendant

[ 380 Pa. Page 486]

Manchester Laundry and Dry Cleaning Company, Inc., is situated on the north side of the street 72 feet east of 11th Street. A loading platform protrudes from the front of its property and extends over the sidewalk 4 feet 2 inches; the sidewalk itself is 12 feet wide. On May 29, 19538 the day of the accident, a truck of the Laundry Company, while the driver was engaged in loading it, was backed up to within a foot of this platform. As the truck was 18 1/2 feet in length it covered the remaining width of the sidewalk and extended an additional 11 feet 8 inches into the roadway, leaving a distance of approximately 14 feet 4 inches between the front of the truck an the south curb of the street. An automobile happened at the time to be parked along the curb on the south side but slightly to the east of the truck.

At about 7:30 in the morning plaintiff, Elvira DeLuca, walking westwardly on the north sidewalk and finding her passage blocked by the truck, stepped out into the roadway in order to proceed around it. The day was clear. She testified that she walked parallel to the side of the truck and at a distance from it of about 5 or 6 feet, that when she came to a line with the front of it she looked and saw an automobile approaching, that she took a step backward, "about a foot or so," but the automobile "came crooked," that is to say swerved toward her and struck her. She (together with her husband) brought suit to recover for her injuries against the Laundry Company and against Charles Chiardio who was the driver of the automobile. Chiardio's version of the accident was entirely different from that of plaintiff. He testified that he was traveling at the rate of only about 15 miles an hour, that he maintained a two-foot clearance as he passed in front of the truck, that he did not change his course but that plaintiff "came out from alongside the laundry

[ 380 Pa. Page 487]

[truck] running or walking - I don't know whether she was running or walking, but she came in contact with the left front of my car and sprawled along the left side of the hood, ..."; he stopped within half the length of his car.

The case was tried by the court without a jury. The trial judge found that Chiardio was not in any manner negligent and that his car did not swerve into the plaintiff; that plaintiff was guilty of a mistake of judgment but not of negligence in coming into contact with the car because she acted while in a perilous position; that the parking of defendant's truck was illegal and was the proximate cause of the accident. Accordingly he found in favor of defendant Chiardio but in favor of the plaintiff against the Manchester Laundry Company in the sum of $3,200. The court en banc dismissed exceptions filed by the Laundry Company to the finding against it, and by both the Laundry Company and the plaintiff to the finding for Chiardio, and entered judgments accordingly. There followed the present appeals by the Laundry Company and the plaintiff.

The court's findings of facts exculpating Chiardio from responsibility for the accident were entirely justified. The trial judge had to choose between the conflicting versions of the accident presented by Chiardio and the plaintiff, and his conclusion, affirmed as it was by the court en banc, must be accepted as a finality. But the appeal of the Laundry Company from the judgment against it must be sustained. In the first place, there is a question whether it was really guilty of a violation of the law in having its truck stand as it did while being loaded. It is true that section 1019(a) of The vehicle Code of May 1, 1929, P.L. 905, as ...

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