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WHITEHILL v. GILBERT CARRIERS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF PENNSYLVANIA


February 28, 1957

Ruth M. WHITEHILL, Plaintiff,
v.
GILBERT CARRIERS, Inc., John D. Winters and Frank Pisano, Defendants. Annette Bollman MILLER, Administratrix C.T.A. of the Estate of Gladys Whitehill Bollman, Deceased, Plaintiff, v. John D. WINTERS, Gilbert Carriers, Inc., Frank Pisano, Shirks Motor Express Corporation, Harry W. Harsh, Defendants, Ruth M. Whitehill, Third-Party Defendant. John D. WINTERS, Plaintiff, v. GILBERT CARRIERS, Inc. and Frank Pisano, Defendants, Ruth M. Whitehill, Third-Party Defendant. SHIRKS MOTOR EXPRESS CORPORATION, Plaintiff, v. Ruth M. WHITEHILL, John D. Winters, Gilbert Carriers, Inc., Defendants, Gilbert Carriers, Inc., Third-Party Defendant

The opinion of the court was delivered by: MARSH

These are diversity actions arising out of a multiple-vehicle accident which occurred on the Pennsylvania Turnpike near the Irwin Interchange at about 9:00 o'clock in the morning of September 5, 1952. The day was bright and clear and the weather was dry.

The Pennsylvania Turnpike is a fourlane east-west highway, two lanes in either direction. Between the east and westbound lanes is a ten-foot wide medial strip. Immediately preceding the accident, the tractor-trailer of Gilbert Carriers, operated by Frank Pisano, was traveling westbound in the slow or right hand lane of traffic. The automobiles of Ruth Whitehill and John Winters were also traveling westbound in the slow lane of traffic some distance behind the tractor-trailer of Gilbert Carriers. Winters, driving a 1949 Ford automobile, was behind Whitehill, who was driving a 1940 Ford automobile. The automobiles were traveling at a speed slightly greater than the tractor-trailer; and upon approaching the tractor-trailer ahead of them, Whitehill and Winters steered their automobiles into the fast or left lane of traffic in an attempt to pass the tractor-trailer. As Whitehill advanced to a position in the fast lane alongside the tractor-trailer, Winters was also behind her in the fast lane of traffic. At this point, a collision occurred as a result of which Winters' car overturned and Whitehill's car went across the medial strip into the path of and collided with the oncoming tractor-trailer of Shirks Motor Express, being operated by Harry Harsh. Gladys Bollman, a passenger in the Whitehill car, received injuries which resulted in her death several days later. Whitehill and Winters also received serious personal injuries. The Shirks' equipment was damaged.

 Suit was first brought by Ruth Whitehill against Gilbert Carriers, Frank Pisano and John Winters. Then the Estate of Gladys Bollman brought suit against Ruth Whitehill, *fn1" Gilbert Carriers, Frank Pisano, John Winters, Shirks Motor Express and Harry Harsh. John Winters then brought suit against Gilbert Carriers and Frank Pisano and they joined Ruth Whitehill as a third-party defendant. Shirks Motor Express then filed an action against John Winters and Ruth Whitehill, and Gilbert Carriers was made a third-party defendant; Shirks then amended its complaint to sue Gilbert Carriers directly.

 All four actions were consolidated for trial on the issue of liability only. Seven interrogatories were submitted to the jury on the issues of negligence and contributory negligence of the various parties. The jury answered that Gilbert Carriers, by its driver Frank Pisano, and John Winters had been negligent, which negligence was a proximate contributing cause of the accident. They also answered that Ruth Whitehill and Shirks Motor Express, by its driver Harry Harsh, had not been negligent or contributorily negligent. *fn2"

 Based upon the answers of the jury to the interrogatories, the suit in which John Winters was plaintiff was dismissed, and the suits of the successful plaintiffs were set down for trial on the issue of damages.

 Thereafter, trial was had on the issue of damages suffered by Shirks Motor Express and, based upon the jury's verdict, judgment was entered in favor of Shirks Motor Express in the sum of $ 3,146.70 against John D. Winters and Gilbert Carriers, Inc.

 At the close of the evidence in the trial on the issue of liability, Winters, as defendant, made a motion for a directed verdict in his favor upon which motion the court reserved its decision. After the verdict, Winters, as defendant, made a motion for judgment in accordance with his motion for a directed verdict, or, in the alternative for a new trial. He also filed a motion for a new trial in his suit as plaintiff.

 We think there was sufficient evidence from which the jury could find that Winters had negligently operated his automobile into the rear of the Whitehill automobile and that such negligence proximately caused or at least contributed to his own injuries and also the injuries and damages suffered by the other three plaintiffs.

 Winters also assigned as error in his motion for a new trial certain portions of the court's charge to the jury relating to the 'assured clear distance ahead' rule and also with respect to the instructions on proximate cause. After argument on the motion and consideration of the evidence and the charge to the jury, we are not convinced that any prejudicial error was committed which operated to the disadvantage of Winters in his capacity as plaintiff or defendant. The motions filed by Winters will be denied.

 Gilbert Carriers and Frank Pisano also filed a motion for a new trial, assigning as a reason therefor, inter alia, that the court erred in instructing the jury, over objection, that Gilbert Carriers and Frank Pisano could be found guilty of negligence even though there was no contact between the Whitehill automobile and the tractor-trailer of Gilbert Carriers. At the argument, Gilbert Carriers and Frank Pisano abandoned all errors alleged in their motion except this one issue upon which they rested their plea for a new trial.

 Ruth Whitehill testified she pulled into the fast lane to pass the tractor-trailer of Gilbert Carriers and was alongside it when she noticed she was being edged or crowded to the left. 'It edged over and then all of a sudden it seemed to be right on top of me' (T., p. 63). She automatically swung the wheels of her automobile and edged to the left toward the medial strip, and she then felt an impact at the right rear of her vehicle which sent her automobile out of control and across the medial strip into the path of the oncoming tractor-trailer of Shirks Motor Express (T., p. 58). She was not certain whether the tractortrailer of Gilbert Carriers had come across the white divider line between the fast and slow lane. 'It seems that it probably did, but I couldn't see for certain' (T., p. 63). She said she did not know what caused the impact.

 Winters testified he was behind Whitehill also attempting to pass the tractortrailer and that he saw the tractortrailer come across the white divider line and come into contact with the Whitehill automobile (T., p. 107). He also testified the trailer came in contact with the right front of his automobile causing him to lose control of it. In a statement given to a police officer shortly after the accident, Winters stated, 'The (Gilbert Carriers) truck started to come over toward the (Whitehill) car traveling in the passing lane. I went to hit the brake, because the (Whitehill) car in the passing lane seemed to slow down. And when I hit the brake, it threw my car into the truck and then I hit the back end of the car.'

 Frank Pisano, driver of the tractortrailer of Gilbert Carriers, testified he saw the Whitehill automobile draw up alongside his tractor-trailer, that the car swayed in toward him, that he tapped the horn and the Whitehill car went over the medial strip (T., p. 293). He said his tractor-trailer did not cross the white divider line and that there was no contact between his vehicle and the Whitehill automobile. Two other witnesses, a service station salesman and a state police officer, testified they inspected the Gilbert Carriers tractor-trailer shortly after the accident, found it dirty and covered with road scum and found no fresh marks as would indicate an impact between it and another object.

 The court charged the jury that it might find Pisano and Gilbert Carriers negligent even though there was no contact between the tractor-trailer and the Whitehill automobile. *fn3" It also charged on the sudden emergency rule as it may be applicable to Ruth Whitehill.

 The specific portion of the charge under attack is as follows:

 'Now, consider whether Frank Pisano's tractor-trailer veered from the slow lane into the fast lane and crowded Whitehill. Or did Whitehill veer to the right toward Pisano?

 'Determine whether Pisano's trailer struck the Whitehill car and the Winters car. If you find Pisano struck the Whitehill Ford and the Winters Ford in the fast lane or if you find he veered to his left into the fast lane to such an extent that he caused Ruth Whitehill to drive into *fn4" the medial strip in order to avoid a collision, and that this striking or crowding caused the Whitehill car to go out of control and collide with the Shirks tractor-trailer and the Winters Ford to upset in the medial strip, then you might find that Pisano did not exercise due care in the circumstances.

 'In other words, you would be justified in finding him negligent and answer the question pertaining to him accordingly. That question is number two. You would answer it yes or no.

 'In this connection, you should consider whether Ruth Whitehill was confronted by a sudden emergency not of her own making but created by Frank Pisano. Or was the emergency created by her lack of care?'

 Gilbert Carriers and Pisano contend this portion of the charge to the jury was reversible and prejudicial error because the theory of liability without contact was not framed by the pleadings nor was there any evidence upon which to charge that Ruth Whitehill may have been subjected to a sudden emergency.

 We think the pleadings adequately apprised Gilbert Carriers and Pisano that liability on their part without contact was in issue. Shirks Motor Express asserted in its pretrial statement that proof may be adduced that Gilbert Carriers' tractor-trailer moved from a direct line and thereby contributed proximately to the accident by forcing Winters or Whitehill to lose control of his or her automobile. The pretrial statement of Gilbert Carriers and Frank Pisano also stated that they intended to prove that there was no contact between their tractor-trailer and either of the automobiles and that the tractor-trailer did not cross the white divider line between the slow and fast lanes of traffic. We think the issue was adequately framed by the pretrial statements and that Gilbert Carriers and Pisano were aware of the issue of liability without contact that had to be met.

 We next take up the question of whether the evidence was sufficient to warrant the charge on the liability of Gilbert Carriers and Frank Pisano without contact.

 One of the primary issues of fact in the case was whether there had been a collision between the Whitehill automobile and the tractor-trailer of Gilbert Carriers. But a negative answer to this inquiry did not necessarily exculpate Gilbert Carriers under the evidence. Certainly the evidence of the veering of the Gilbert Carriers' vehicle toward the left and into the fast lane of traffic when Whitehill was in the process of passing it, and the sounding of its horn, could, if believed by the jury, constitute negligence on the part of Gilbert Carriers and Frank Pisano. The issue then posed for the jury's determination was whether such negligence was a proximate contributing cause of Whitehill's losing control and crossing the medial strip. Ordinarily the question of proximate cause is for the fact-finding tribunal. Landis v. Conestoga Transp. Co., 1944, 349 Pa. 97, 36 A.2d 465. Whitehill testified that upon being crowded by the tractor-trailer, she swung her wheels toward the medial strip and then the impact at the rear (which could have come from the Winters' car) forced her automobile across the strip. Winters stated to the police that the Whitehill car slowed down upon its being crowded, that he put on his brakes which threw his car into the tractor-trailer and then his car hit the Whitehill automobile. With this evidence we think the issue was properly a jury question under the instructions given with respect to proximate cause.

 Defendants Gilbert Carriers and Frank Pisano also contend that the evidence did not warrant a charge on sudden emergency as applicable to Ruth Whitehill. They contend that whether a person is confronted with a sudden emergency is necessarily a subjective thing *fn5" and that the evidence thereof must be found in the testimony of the person claiming the benefit of such rule, at least where that person has been a witness at the trial. After the jury had been charged generally on the rule of sudden emergency, they were told to consider whether Ruth Whitehill had been confronted by a sudden emergency, and whether it had been created by her own lack of care or by Frank Pisano. From the entire record of the case, we think the evidence warranted such charge. And even applying the narrower rule as contended by Gilbert Carriers, we think evidence of a sudden emergency can be found in Whitehill's own testimony. If, as she stated, her car was crowded by Gilbert Carriers' tractor-trailer while passing it at a speed of approximately fifty-five miles per hour so that 'it seemed to be right on top of me', it cannot be held as a matter of law that she was not confronted with a sudden emergency, especially in the light of her reflex actions in braking and swinging her car toward the medial strip. If this conclusion is correct, the sudden emergency issue was properly submitted to the jury. Further, the evidence of crowding was sufficient for the jury to find that Pisano negligently created the emergency. Also, the evidence that Whitehill in response to the emergency automatically swung her car toward the medial strip and suddenly slowed down in front of Winters, thereby causing him to 'hit' his brake, lose control and collide with the rear of the Whitehill car, was sufficient to find that Pisano's negligence was a proximate contributing cause of the accident.

 The motion of Gilbert Carriers and Frank Pisano for a new trial will be denied.


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