Appeal, No. 41, Jan. T., 1955, from order of Court of Common Pleas of Blair County, June T., 1951, No. 120 and March T., 1951, No. 90, in cases of John E. Wilt, Jr. v. Harry Blazier and Howard Boggs, and S. E. Boggs v. Harry L. Blazier. Order reversed.
Frank B. Warfel, with him Harry Blazier, for appellant.
Robert C. Haberstroh, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This litigation arose out of an automobile collision occurring about 1 A.M. on January 2, 1951 on Highway Route 220 where it runs southward from the Borough of Tyrone to the City of Altoona in Blair County. Howard Boggs was operating a 1950 Mercury two-door sedan southward on this highway and ran into the rear of a 1947 Chevrolet four-door sedan being operated by Harry Blazier, at a point some distance south of an intersecting road from which Blazier had entered upon the highway and was proceeding southward. John E. Wilt, Jr., a passenger in the Boggs car, brought an action of trespass against Blazier and Howard Boggs to recover damages for personal injuries sustained in the accident. The car driven by Howard Boggs had been borrowed for his own personal use from his brother, Stanley E. Boggs. The latter as owner brought an action against Blazier to recover for damage done to his car. The cases were consolidated for trial and
the jury rendered a verdict in Wilts' suit in the amount of $2,500 against Howard Boggs but exonerated Blazier. It also found a verdict in favor of Blazier in the suit brought against him by Stanley Boggs. Wilt, Howard Boggs and Stanley Boggs respectively filed motions for new trial and the court, for the reasons hereinafter discussed, entered an order granting a new trial generally in both cases. Blazier appeals therefrom.
The accident happened on a clear night and the roadways were dry. Route 220 is a three-lane concrete highway 33 feet in width with berms about 9 feet in width on both sides. Joseph Rio, a State Policeman, testified thereto and also testified, without giving exact measurements, that the intersecting road running east and west upon which Blazier was travelling westwardly when he entered Route 220 was "of good width". It was established and no disputed that there was a "Stop" sign about 3 feet from the eastern berm of Route 220 on the north side of the intersecting road, at which there was a clear view up and down Route 220 of about two miles. Blazier, who had four passengers in his sedan, testified that he stopped at this "Stop" sign and before entering the highway looked and saw a car approaching from his right which was 300 yards or more distant and a car from his left 150 yards away. He fixed the distance of the car approaching from his right (which turned out to be the Boggs car) by a cement bridge located 300 yards north of the intersection, and testified that when he saw the car it had not reached this bridge; that he proceeded past the first two lanes of the highway, turned into the far or southbound lane and proceeded southwardly thereon a distance of 100 feet when he was struck in the rear by the Boggs car; that the impact caused his car to twice turn end over end before it finally came to
rest on its side at a point in the highway about 100 or 150 feet from the point where it was struck; and that his car was completely demolished. Rio, the State Policeman, called as a witness by both sides, and who arrived at the scene of the accident 20 minutes after it occurred and before either car was moved, testified that the point of impact which was determinable by grease, oil and debris on the highway, was, as testified to by Blazier, 100 feet south of the intersection; that the Blazier car came to rest 100 feet farther south; that the damage to the two cars clearly indicated that the Blazier car was struck in the rear by the Boggs car "with great force" and that damage to both sides and the roof of the Blazier car also indicated that it had turned over, as stated by Blazier. The officer further testified that after the impact the Boggs car travelled forward about 85 feet, coming to rest on the west berm, facing north; that for the distance stated the dirt on the berm was "gouged up" by the imprint of Boggs' car; that there were no skid or tire marks on the highway north of the point of impact, that is, in the direction from which Boggs approached. The officer interviewed Boggs at the scene of the accident and testified that Boggs said he was going 50 miles per hour and that although he saw the rear lights of the Blazier car, he had not applied his brakes; that he asked Boggs why he had not applied his brakes and Boggs "just shrugged his shoulders and walked away." The officer also testified that Boggs stated he had had four "beers."
Miss Joan Haigh who was seated next to Blazier in his car and Norman Cherry, another occupant, corroborated all of the material facts in Blazier's account of his operation of the car and happening. Both testified that when Blazier entered the ...