Appeal, No. 339, Jan. T., 1957, from judgment of Court of Common Pleas of Elk County, Oct. T., 1954, No. 151, in case of Joseph W. DeHaas v. F. Cryder DeHaas and Putman and Greene, Incorporated. Judgment affirmed.
R. T. Mutzabaugh, with him Paul B. Greiner and Mutzabaugh & Healy, for appellant.
B. R. Coppolo, with him Alvin B. Coppolo and Driscoll, Gregory & Coppolo, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On the night of October 27, 1953, Joseph W. Dehaas was injured when the car being driven by his brother F. Cryder DeHaas, and in which he was a passenger, crashed into a boulder imbedded in a three-foot pile of earth lying on Route 155 in Elk County. Joseph*fn* brought an action in trespass against the driver Cryder and the firm of Putman and Greene, Inc., which had been engaged in constructing and repairing the highway. The jury returned a verdict in favor
of Joseph against both defendants. Cryder did not appeal. The Putman and Greene company has asked for judgment n.o.v., advancing three reasons: (1) Joseph was guilty of contributory negligence in failing to make suitable protests to Cryder; (2) Putman and Greene owed no duty to Joseph; (3) Joseph had a choice of a safer route to his destination.
The appellant, Putman and Greene, Inc., contends that since the jury found Cryder negligent in his driving, this finding proves that Joseph knew of Cryder's negligence and, therefore, Joseph is saddled with an established contributory negligence which he can not shake off. This contention is not supportable in reason. The question as to whether Joseph knew that Cryder was operating the car negligently must be decided by what he saw or should have seen on the night of the accident and not by what twelve men and women decided two years after the accident and after they listened to many witnesses unknown and inaccessible to Joseph as he was being driven to his fateful injuries. The searchlight of inquiry, research, and revelation, which the jury brought to bear on all the facts and circumstances of the accident was not available to Joseph in the front seat of the car as it moved over the apparently safe and innocuous highway.
There were many reasons why neither Joseph nor Cryder could not see the accumulation of earth until too late to avoid colliding with it. The construction company had not set up any barricades in front or around the obstacle, it did not hang any lantern in the vicinity. The dark night, an enveloping mist, and a falling rain all conspired to throw a cloak of obscurity over ...