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KLIMCZAK v. 7-UP BOTTLING COMPANY PHILADELPHIA (05/21/56)

May 21, 1956

KLIMCZAK
v.
7-UP BOTTLING COMPANY OF PHILADELPHIA, INC., APPELLANT.



Appeal, No. 107, Jan. T., 1956, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1952, No. 3140, in case of Stanley Klimczak v. 7-Up Bottling Company of Philadelphia, Inc. and James H. Boulware and Lipoff's Wholesale Meat Company. Judgment reversed as to appellant.

COUNSEL

Herbert A. Barton, with him Swartz, Campbell & Henry, for appellant.

Henry T. Reath, with him James J. McCabe, Jr., John Lamon and Duane, Morris & Heckscher, for appellee.

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

Author: Jones

[ 385 Pa. Page 289]

OPINION BY MR. JUSTICE JONES

The plaintiff, Stanley Klimczak, sued the defendants, 7-Up Bottling Company of Philadelphia, Inc., and one James H. Boulware, for damages for personal injuries allegedly caused by the negligence of the driver of the 7-Up Company's truck and Boulware, the driver of a truck owned by Lipoff's Wholesale Meat Company. The 7-Up Company brought the Meat Company upon the record as an additional defendant. The jury returned a verdict for the plaintiff against all three defendants jointly. The 7-Up Company moved for judgment n.o.v. on the ground that the evidence was insufficient to support a finding of negligence on its part; Boulware and the Meat Company filed motions for a new trial. The learned court below denied all motions, and respective judgments were accordingly entered on the verdict. Only the 7-Up Company has appealed to this court.

The sole question raised by the appellant is whether the evidence adduced at trial was sufficient to warrant the jury's finding its driver guilty of causative negligence. Viewed in the light most favorable to the verdict, as the procedural situation requires, the evidence and reasonable inferences therefrom show that the plaintiff's injuries were suffered in the following manner.

About 3:15 P.M. on a clear, dry, summer day, the plaintiff, a carpenter, parked his truck at a metered parking space along the sidewalk curb in front of a business establishment where he intended to purchase supplies. At the time, a truck of the 7-Up Company was parked at the curb alongside a fire hydrant from two to ten feet, as variously estimated, to the rear of the plaintiff's truck. The plaintiff, having completed his purchases, came out of the store and walked to the curb, intending to place his supplies in the back end

[ 385 Pa. Page 290]

    of his truck. Before he stepped down from the curb, he looked to his left an saw the 7-Up truck still parked where it had been and not moving; the driver was sitting in the cab of the truck. The plaintiff stepped off the curb between the two trucks and was in the act of placing his purchases in the rear of his truck when he heard a "crash". Glancing to his left, he saw the 7-Up truck coming forward toward him. Lacking time to extricate himself, he was pinned between the 7-Up truck and his own, thereby sustaining the injuries to his left arm for which he sued to recover damages.

The appellant's driver testified that, intending to make service calls nearby, he had parked his truck as close as possible to the curb, had shut off the engine and had put it into low gear. Having completed his calls, he had returned to the truck and was sitting in the cab making entries of the calls in his book. While so doing, he "felt a crash and a jolt" which propelled his vehicle forward and rocked him back in the seat of the truck, causing him to strike his head on something. When he alighted from his truck, it was still in low gear. It was the forward motion of the 7-Up truck that pinned the plaintiff against the rear end of his own vehicle and inflicted his injury.

The "crash" to which the witnesses testified was due to another trick's striking the rear left-hand side of the 7-Up truck. The "striking" truck was the property of the additional defendant, Lipoff's Wholesale Meat Company, and was driven by James Boulware, the other defendant. Boulware testified that he had seen the 7-Up truck parked by the curb and that, as he had intended to "double park" somewhere ahead of the 7-Up truck, he was proceeding past it slowly. The engine portion and cab of ...


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