Appeal, No. 116, March T., 1956, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1950, No. 2681, in case of Robert D. Metro, administrator of estate of Wayne J. Metro, deceased, v. Long Transportation Company. Judgment affirmed. Trespass for wrongful death. Before KENNEDY, J. Verdict for plaintiff in the sum of $25,000.; defendant's motion for judgment n.o.v. granted. Plaintiff appealed.
James P. McArdle, with him James E. McLaughlin, for appellant.
Wallace E. Edgecombe, with him Van Der Voort, Royston, Robb & Leonard, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
The plaintiff recovered a verdict against the defendant, which the court below set aside and entered judgment for the defendant, n.o.v.
We affirm this judgment on excerpts from the opinion of Judge KENNEDY as follows:
"On ruling on a motion for judgment n.o.v. we are required to view the testimony in the light most advantageous to the plaintiff and to resolve all conflicts therein in his favor and he is to be given every benefit of every fact and inference of fact pertaining to the issues involves which may reasonably be deduced from the evidence; and in addition the plaintiff is entitled to have the evidence supporting his verdict considered and all the rest rejected.
"The evidence thus offered by the plaintiff establishes that on the morning of November 4, 1949 at and
before 9:15 a.m. the decedent [twenty-one years of age] was driving a tractor-trailer combine in a westerly direction on the Pennsylvania Turnpike. The weather was dry and clear and visibility was good. The decedent emerged from the western exit of the Sideling Tunnel at which place the roadway is level for a short distance, and then there is a descending grade on which there is a slight curve and from the bottom of this roadway at this point a long gradual straight ascending grade starts. (Two percent grade by survey measurement. The accident occurred on this ascent and the testimony disclosed that from the situs of the accident eastwardly there was an unobstructed view of the roadway for at least one and one-half miles. Photographic exhibits submitted by plaintiff clearly confirm this. There were no witnesses for the plaintiff who observed the collision and accident. One Staples by name, a witness for the plaintiff, testified that he was driving a small International Cab and Chassis (the tractor or front half of a tractor-trailer combine) westwardly in the immediate rear of the decedent's outfit through the Sideling Tunnel. On the descending grade immediately west of the tunnel he decided to pass Metro's tractor-trailer. As he was pulling around this tractor-trailer just at the bottom of the ascending grade he observed the defendant's tractor-trailer outfit in the right-hand lane of the two westbound lanes of travel, and about one-half mile further to the west. At that moment Staples had the impression that defendant's combine was moving very slowly up the ascending grade. He negotiated the passing of the decedent's tractor-trailer and started turning back from the left lane into the right-hand or outside lane of travel when he observed that the defendant's outfit was stopped in the right-hand lane. At this time he was straddling
the two westbound lanes. He turned immediately back into the left lane at a place he estimated was at least five hundred feet east of the stopped outfit of the defendant. He continued on in the left lane at a speed of about forty-five m.p.h. When passing defendant's outfit he observed through the opening between the back of the cab or the tractor and the front wall of the trailer that one man was standing at the right-hand rear of the Long tractor and that another man was either lying or squatting down on the ground in front of the right rear wheel of the tractor and appeared to be reaching under this right wheel. At the time of making these observations Staples stated that he took his foot off the gas pedal and momentarily and Slightly decelerated his speed. He continued to drive forward several hundred feet in the left lane and then began to turn back into the right-hand lane, and when his tractor was thus on an angle to the right he glanced over his shoulder and observed a cloud of dust and a flash of flames coming from somewhere near the right rear of the defendant's outfit. He immediately applied the brakes to his tractor and to such an extent that his wheels left skid-marks and came to a stop over in the right lane, and about five hundred feet to the west of the front of the defendant's outfit. He then hurried back to the scene of the accident. There he discovered that the decedent's tractor-trailer had hit the right rear of the defendant's unit pushing it ...