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BYERS v. VARGO (05/27/57)

May 27, 1957

BYERS
v.
VARGO, APPELLANT.



Appeals, Nos. 99, 100 and 103, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, July T., 1953, No. 1939, in case of Mary J. Byers, administratrix of estate of Carl D. Byers, deceased, v. Steve Vargo et al. Judgment reversed; reargument refused July 1, 1957.

COUNSEL

George Y. Meyer, for appellant.

Dennis C. Harrington, with him James P. McArdle, for appellee.

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

Author: Bell

[ 389 Pa. Page 366]

OPINION BY MR. JUSTICE BELL

These appeals arose out of actions in trespass for death of plaintiff's decedent resulting from a collision between a Chevrolet automobile driven by Vargo on the long Versailles-Boston Bridge in Allegheny County, and a motorcycle driven in the opposite direction by the additional defendant Moldovan. Plaintiff's decedent was a passenger on the back seat of the motorcycle. The jury returned a verdict against Vargo and in favor of plaintiff in the Wrongful Death action in the amount of $2500, and in the Survival action in the amount of $7500. The jury also returned a verdict in favor of Moldovan, the additional defendant.

Vargo filed a motion for a new trial, contending that the verdicts were clearly against the weight of the credible evidence. The Court below refused the motion and entered a judgment on each verdict. From these judgments Vargo has taken these appeals.

The accident occurred on September 22, 1952, at about 4 o'clock p.m., near the middle of the Versailles-Boston Bridge. The day was clear and dry. The ramp

[ 389 Pa. Page 367]

    on the upgrade to the bridge was 527 feet in length and the bridge itself was 780 feet in length.

There were three lanes of traffic, each lane marked by broken white lines. Vargo, accompanied by his wife, his stepdaughter and her infant child, was driving his Chevrolet car north on the bridge going from the Boston end to the Versailles end. A loaded tractor-trailer, about 40 feet in length, was proceeding at about 15 Miles an hour in the right-hand (correct) lane close to its right curb, going from the Boston end toward Versailles. Vargo, traveling about 25 miles an hour and going in the same direction as the tractor-trailer, pulled into the center lane to pass. On the bridge at that time there was no traffic proceeding from the Boston end to the Versailles end except Vargo's automobile and the tractor-trailer, and there was no traffic proceeding in the other direction except Moldovan's motorcycle. Vargo's car was struck by the motorcycle to the left of its front headlight, its front wheel and axle being instantly broken. It was then struck by the tractor-trailer on the right. Both men on the motorcycle, and apparently the motorcycle itself, were catapulted into the air and continued some distance past the point of collision. Both men on the motorcycle were badly injured, plaintiff's decedent dying shortly after the accident. Whether the collision occurred in the center lane or in the left lane - the farthest from Vargo's side - and whose fault it was, were the crucial questions at the trial.

The facts, as will hereinafter more fully appear, are very unusual. Vargo sued Moldovan and recovered a verdict against him, which was affirmed by the Court en banc. Moldovan took no appeal from the judgment which was duly entered on this verdict. Moldovan testified at each trial that he never saw the tractor-trailer

[ 389 Pa. Page 368]

    or Vargo's car until the moment of impact, although there was nothing to obstruct his view.

Vargo testified that Moldovan was driving about 50 miles an hour; that after he (Vargo) pulled into the center lane in order to pass the tractor-trailer, he observed the motorcycle approaching in the opposite direction in its right-hand lane; that as he started to angle his car back into his right-hand lane to complete his passing of the tractor-trailer, he saw the motorcycle driver (Moldovan) turn his head to the right of the motorcycle and at the same instant the motorcycle swung left into the center lane about 75 feet away from Vargo and quickly crashed into Vargo's car.

Mrs. Lodor, stepdaughter of Vargo, corroborated Vargo's testimony that he was at no time in the left lane and that "The motorcycle driver [Molodovan] turned his head to his right*fn* and as he did so the cycle came into the middle lane and the collision occurred."

Vincent Benedetti, the driver of the tractor-trailer, corroborated Vargo in all his testimony and particularly that the collision occurred in the middle lane. Benedetti's seat on the tractor-trailer was so high that it enabled him to see over the top of automobiles and "he had noticed the cycle driver turn his head and then come into the center lane just before the collision".

James Bernick, Chief of Police, interviewed Moldovan very shortly after the accident and testified, without contradiction (by Moldovan) that Moldovan said "he grabbed for his cap and turned his head momentarily and the boy behind yelled, 'Look out, you are going to crash', and it was too late to do ...


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