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MASTROCINQUE v. MCCANN (ET AL. (04/16/56)

April 16, 1956

MASTROCINQUE
v.
MCCANN (ET AL., APPELLANT).



Appeal, No. 33, March T., 1956, from judgment of Court of Common Pleas of Westmoreland County, Aug. T., 1953, No. 629, in case of Gertrude Mastrocinque, Admrx. of estate of William G. Mastrocinque, dec'd. v. Arthur C. McCann and Kenneth Early. Judgment reversed.

COUNSEL

Joseph F. Weis, with him Fred B. Trescher, Christ C. Walthour, Jr., Weis & Weis, and Kunkle & Trescher, for appellant.

Abraham Fishkin, with him Andrew Romito and Frank Reich, for appellee.

Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.

Author: Arnold

[ 385 Pa. Page 34]

OPINION BY MR. JUSTICE ARNOLD

The administratrix of decedent Mastrocinque instituted this action of trespass, under the Survival and Wrongful Death Acts, against defendant McCann, who joined Early as additional defendant. The jury returned a verdict against both defendants, making special findings that the negligence of neither was the sole proximate cause, but that the negligence of both concurred in causing the injuries and death, and that decedent was not contributorily negligent. This appeal is by Early from the refusal of his motions for new trial and judgment n.o.v. McCann, the original defendant, does not appeal.

After dark on December 15, 1952, decedent and Early were returning in Early's car to their homes in Vandergrift. At a point on State Route No. 66, about two miles south of Clarion, Early stopped his car and decedent went to the rear of the car to relieve himself. The car was on a downgrade slope about 200-300 feet

[ 385 Pa. Page 35]

    from the crest. The road was two-laned macadam, 22 feet wide, with berm of 5 feet, according to McCann, and 10-12 feet according to Early. A drainage ditch ran along the far side of the berm. Early testified that the car was "parked alongside the road" with "95 per cent of it" off the berm. He could not say whether his left rear wheel was on or off the roadway. McCann testified that all wheels were on the roadway.

Decedent stood behind the car "by the left rear fender," and Early passed him to stand "over by the ditch." As they were so standing, McCann approached from the rear, went into a skid sideways and struck decedent and Early. Decedent succumbed to the injuries about one week later.

Early contends, (1) that decedent's relation of guest passenger and Early's obligation to him as driving host terminated after decedent alighted from the automobile, and (2) that decedent was guilty of contributory negligence.

Plaintiff argues that since Early's car was illegally parked, it was a concurrent cause of the accident, and his duty to decedent-passenger continued even though he was not actually in the process of driving. In substance, plaintiff contends that he knowingly created a danger which, with the negligence of McCann, caused the accident. He relies upon Biehl, Admr. v. Rafferty, 349 Pa. 493, 37 A.2d 729. But in that case this Court did not determine the question now before us, although on its facts t is somewhat similar to the instant case. This ...


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