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KELLER v. WILKINSBURG PENN JOINT WATER AUTHORITY. (04/21/58)

April 21, 1958

KELLER, APPELLANT,
v.
WILKINSBURG PENN JOINT WATER AUTHORITY.



Appeal, No. 222, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, April T., 1954, No. 1119, in case of Findley Keller v. Wilkinsburg Penn Joint Water Authority. Judgment affirmed.

COUNSEL

Anthony J. Martin, for appellant.

Kim Darragh, for appellee.

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

Author: Arnold

[ 392 Pa. Page 261]

OPINION BY MR. JUSTICE ARNOLD

Plaintiff appeals from the refusal of the court below to grant a new trial, following a verdict for the defendant.*fn1 His only contention is that the verdict was contrary to law and against the weight of the evidence.

On Sunday, October 11, 1953, a clear, dry evening, the plaintiff, his son and his brother, were travelling eastward from Pitcairn to Trafford, on Broadway Extension in the borough of Pitcairn, Allegheny County. Between 6:30 and 7:30 P.M., the plaintiff-operator testified, he was temporarily blinded by the headlights of an approaching vehicle. Soon thereafter he felt two

[ 392 Pa. Page 262]

    sudden bumps, throwing him successively against the steering wheel of his automobile. However, he did not lose control of his automobile, nor did he stop it. Approximately an hour later, when returning on this same road, but in a westward direction, he came upon police and other persons repairing a barricade over an excavation four feet by two feet, and placing lighted lanterns thereon. Appellant did not stop but continued to his destination. The next day he was informed that the excavation was dug by the Wilkinsburg Joint Penn Water Company,*fn2 for water line installation in a nearby home.

At trial, Keller produced two witnesses, in addition to himself.*fn3 William Keller, his brother, testified that he also was blinded by the headlights and was thrown against the dashboard. Significantly, neither appellant nor his brother saw any barricades or lanterns, - both were blinded. The only discrepancy in their testimony was as to the time the blinding by the headlights occurred. Appellant stated he was blinded for 70 to 80 feet before the jolts, whereas his brother stated the blinding and the jolting to be simultaneous. The other witness, Norman Robert Davis, was operating the automobile following appellant at a distance of about 20 to 25 feet. He testified substantially as follows: That several boards were thrown onto his car; that he stopped his vehicle in front of the hole and that he examined the area and noticed several boards and three extinguished lanterns, "lying out in the middle of the road." Davis did not examine these lanterns but pursued the appellant, unsuccessfully, for a very short distance.

[ 392 Pa. Page 263]

The Water Company, at time of trial, admitted "... that [on the day of the alleged accident] the ... Water Company was in the process of installing a service line ..., and in connection therewith had opened up a hole, and [further admitted] the maintenance, control and supervision of ... [the] hole ..." In addition, it produced two laborers, a foreman, and an inspector as witnesses. All of these, except the inspector, testified as to the nature of such an operation, upon their recollection being refreshed by use of the Water Company's time cards, containing notations as to the work progress on this particular excavation and the materials used. All stated that work began on Wednesday and continued until Friday noon; that they left shortly after pouring concrete within 2 to 2 1/2 inches from the top, which portion was latter to be filled with asphalt; that the excavation was filled as stated and the residue of the dirt hauled away in a truck when they left the job some time ...


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