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HEIMBACH v. PELTZ. (03/13/56)

March 13, 1956

HEIMBACH, APPELLANT,
v.
PELTZ.



Appeals, Nos. 81, 82, 83, 84, 85 and 86, Jan. T., 1956, from order of Court of Common Pleas of Lehigh County, April T., 1954, No. 11; from order of Court of Common Pleas of Lehigh County, Jan. T., 1954, No. 183 A; and from order of Court of Common Pleas of Lehigh County, Jan. T., 1954, No. 183, in cases of Paul O. Heimbach et ux. v. Walter E. Peltz and Penn Farms, Inc.; Susan M. Peltz v. Penn Farms, Inc. and Walter E. Peltz; and Walter E. Peltz v. Penn Farms, Inc. Orders reversed.

COUNSEL

Boyd H. Walker, with him Donald E. Wieland, Paul A. McGinley, Walker & Walker and Butz, Hudders, Tallman & Rupp, for appellants.

Robert H. Jordan, with him Edwin K. Kline, Jr. and Kline & Kline, for appellee.

Before Stern, C. J., Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 384 Pa. Page 309]

OPINION BY MR. JUSTICE MUSMANNO

On the night of July 17, 1953, an automobile owned and operated by Walter E. Peltz collided with a tractor-trailer owned by Penn Farms on Route No. 100, between Macungie and Shimerville in Lehigh County, with resulting injuries to Peltz and the three passengers riding with him, namely, his wife Susan M. Peltz, Paul O. Heimbach and Esther F. Heimbach. They all filed trespass actions against Penn Farms which brought in Peltz as an additional defendant except, of course, where he himself was the plaintiff. The cases were consolidated for trial and the jury returned verdicts in favor of the individual plaintiffs against Penn Farms, at the same time exonerating Peltz of liability.

The lower Court refused motions for judgments n.o.v., but awarded a new trial on the basis that the verdicts were against the weight of the evidence, that the plaintiff Peltz had failed to make out a case free

[ 384 Pa. Page 310]

    of contributory negligence and did not meet the burden of proof establishing negligence on the part of Penn Farms.

At about 10:30 p.m., on July 17, 1953, Walter E. Peltz was driving his 1950 Dodge Sedan southwardly on Route 100, climbing a hill surmounted by an "S" curve, when he detected light beams of an approaching vehicle not yet visible in the surrounding darkness. He slowed down his speed from 25-30 miles per hour to less than 10 miles per hour and continued the ascent in second gear. When about 50 to 70 feet from the beginning of the "S" curve, a tractor-trailer loomed ahead of him on his (Peltz's) side of the road. For traffic moving southwardly the immediate curve swept to the right, for the tractor-trailer the curve bent to its left. The tractor-trailer was a towering gargantuan vehicle of some 23,000 pounds with an over-all length of 45 feet and was travelling at 30 to 35 miles per hour. Entering the curve, it cut through the center of the arc and proceeded into the inner lane, the driver apparently intending to get back to his own side of the road after he had left the curve behind him. It was while he was in this transitory phase of movement that he found himself confronting Peltz. Both drivers reacted instinctively. Peltz swung to his right to give the tractor-trailer as wide a berth as possible, his right wheels seizing and straddling the shoulder of the road and his left wheels moving 6 or 7 feet to the right side of the white line which divided the 21-foot wide highway in two. The driver of the tractor-trailer, on the other hand, cut sharply to his own right to get back to the outer rim of the circle which, of course, he should never have left. He succeeded in getting the tractor part of his vehicle into its proper lane but the front part of the trailer, loose-jointed and more difficult of maneuverability, continued far enough ahead to collide

[ 384 Pa. Page 311]

    with the left front of Peltz's car, dragging it some 15 or 20 feet "around". The whole front of Peltz's car was demolished and all the ...


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