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ROPELE v. STEWART ET AL. (01/21/58)

January 21, 1958

ROPELE
v.
STEWART ET AL., APPELLANTS.



Appeals, Nos. 103 and 110, April T., 1957, from order of Court of Common Pleas of Greene County, Sept. T., 1955, No. 173, in case of Herman Ropele v. Leonard Stewart and Isaac Lewis. Order reversed.

COUNSEL

R. Wallace Maxwell, for appellants.

J. Salem Flack, with him John I. Hook, Jr., and Scott and Hook, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 185 Pa. Super. Page 524]

OPINION BY WOODSIDE, J.

This is an appeal from the order of the Court of Common Pleas of Greene County granting a new trial after a jury found for the defendants in a trespass action growing out of a motor vehicle collision. The case has been tried twice. The first time the jury was unable to agree.

The evidence shows that the accident occurred during daylight along a dry country road paved to a width of from 14 feet 9 inches to 15 feet 3 inches. Beyond the paved portion there were gravel or grass berms of

[ 185 Pa. Super. Page 525]

    an estimated width of three feet. The plaintiff was operating a 1936 Ford four door sedan. The defendant, Stewart, was operating a 1946 Ford dump truck on the business of its owner, Isaac Lewis, the other defendant. The vehicles were proceeding in opposite directions.

The plaintiff testified that he was operating his automobile at about 25 miles per hour, on his side of the highway, talking to his passenger, Nina Assad, but watching the road ahead. He had his left elbow resting on the door, and his left hand grasping the drain on the roof of the car. Although his arm was outside of the car, he testified that it was "inside the running board." He noticed the defendants' truck approaching him when he was a "hundred and some feet away." He testified that the truck was then partly on his side of the road, and that it continued toward him in a straight line, without changing its position in relation to the center of the highway. The plaintiff did not reduce his speed, nor pull in his arm, but continued to drive with one hand. He pulled the right wheels of his automobile onto the berm, and said he thought he was "far enough off of the road to prevent the accident" and "didn't think there was going to be one." But the truck and the automobile did sideswipe each other, and the plaintiff's arm was mangled so badly that it had to be amputated halfway between the shoulder and the elbow. The truck stopped within a few feet of the point of impact, but the plaintiff continued driving for over 1000 feet, until he was around a curve from the place where the accident happened. There he stopped and received assistance from passing motorists. His passenger corroborated his testimony.

The defendants' truck body was 7.8 feet wide. This was within the legal limits but was too wide to be operated entirely on its side of the paved portion of the

[ 185 Pa. Super. Page 526]

    road unless part of it extended over the berm. It was travelling between 20 and 30 miles per hour. When Stewart first saw the automobile approaching about 300 feet to 500 feet away, he said that part of his truck was left of the center of the road, but as he approached the automobile he pulled it over to the right, so that before he got to the car the right front wheel of his truck was moving along the edge of the highway. Because the inside rear dual wheel is in line with the front wheel, the outside rear dual wheel and part of the truck body beyond it was off the paved highway, according to his testimony. He said that when he was about to pass the automobile his truck was entirely on his side of the highway, and that there was plenty of room for the plaintiff to pass. He said that when the vehicles were about 100 feet apart, the plaintiff "drove off or fell off or dropped" on to the berm and ...


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