Appeal, No. 289, March T., 1954, from order of Court of Common Pleas of Beaver County, June T., 1953, No. 282, in case of Delia Coward, Admrx., Estate of Charles W. Coward, deceased, v. Norman Charles Ruckert and Joseph Ruckert, minor son of Norman Charles Ruckert. Order affirmed.
Lee E. Whitmire, Jr., with him Swaney & Whitmire, for appellants.
Thompson Bradshaw, with him Bradshaw & Panner, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
This is an appeal from an order of the Court of Common Pleas of Beaver County awarding a new trial in a trespass case in which the jury returned a verdict for the defendant. Briefly the facts are as follows: On December 16, 1952, at about 6:40 in the evening, Charles W. Coward, 71 years of age, who had for 40 years been employed by the Pittsburgh & Lake Erie Railroad Company, was on his way home, walking along the berm of a country road known as the North Street Extension between Freedom and New Sewickley Township in Beaver County, when he was struck and killed by an automobile which came up on him from the rear.
The defendant driver, Joseph Ruckert, 17 years of age at the time of the accident, testified that he at no time saw the decedent before striking him. He excused this inability to see what obviously had to be in his path of travel by saying that the lights of an oncoming car blinded him. He was travelling on a 1500 feet straightaway and the lights of the approaching car were 1000 feet away. He testified: "Q. Now, as you approached the scene, how close were you to the other car - how close were your two cars together when you finally got blinded? A. I would say pretty near a thousand feet. Q. A thousand feet? A. Yes. Q. Do you mean when this other car was a thousand feet away from you, that you were blinded by his lights? A. Yes - well, from pretty near the beginning of that straightaway." It is hard to believe that even an owl would be blinded by a light one thousand feet away. Apparently the defendant himself realized later on that his statement was incredulous so he reduced the blinding distance by saying: "Q. Well, anyhow, you were blinded when this car that you saw was clear down there almost by that curve, a thousand feet or more; is that it? A. Yes. Q. And you stayed blinded while - A. No. I could see until he kept on getting closer and closer ... Q. You just told me you were blinded for a thousand feet? A. No - I couldn't see very good, but I could see." He explained that while he was visually disturbed he could see well enough to keep his car on the road and added that when he was 100 or 150 feet away from the other car he slowed down from 35 to 30 miles per hour. But it is not easy to place even this revised version within the framework of probabilities because the record shows that the impact of the car was so violent that it hurled the decedent's body 40 feet with resulting bone-crushing mutilations
and limb amputation not ordinarily associated with a collision with a car moving only 30 miles per hour. The condition of the defendant's car confirms the impression which inevitably rises from the pages of the testimony that the jury could well have found that the defendant was grossly negligent in the manner in which he handled his vehicle on the night of the tragedy. The extreme right corner of the car's front fender on the outer portion of the headlight was damaged in such a way as to establish quite convincingly that the decedent was walking where he could have been passed without collision if the defendant had been watching the path of travel he was about to traverse.
It would seem that the decedent himself had used extreme care in walking at the extreme right of the country road and in addition carried a flashlight to warn automobiles of his presence. At any rate, one Earl Gross testified: "A. And as I looked at this man I presumed to myself that he was dead. And as he was laying there, he had been carrying a flashlight; and at this time the flashlight was in his left-hand overcoat pocket, and the light was burning, with the light shining up." He also testified that while standing on the spot the culpable car which had continued on its way after the impact returned. It contained three young men. Gross said: "... When the car got close I stepped out in the middle of the road and stopped this car; and there was three boys in the car; and I could smell drink - now, which ...