Appeal, No. 25, May T., 1958, from judgment of Court of Common Pleas of York County, Aug. T., 1955, No. 418, in case of Wayne R. Brown v. Shirks Motor Express. Judgment reversed.
W. Burg Anstine, with him Robert I. Shadle, and Anstine, Shadle & Griest, for appellant.
Arthur Markowitz, with him Lewis P. Sterling, and Markowitz, Liverant, Rauhauser & Kagen, for appellee.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On February 3, 1955, the plaintiff, Wayne R. Brown, was flung by the spinning wheels of a tractor-trailer into the restricted space of eight inches between the top of the tires and the body of the trailer, where, through the continued revolving of the wheels, he sustained grave injuries which included crushed facial bones, fractured jaw, stripping of teeth, optical damage, disfigurement, shock, extended hemorrhage, and mutilation. He brought suit against the owner of the tractortrailer, Shirks Motor Express, and the jury returned a verdict in his favor in the sum of $56,200. The defendant moved for judgment n.o.v., which was granted by the Court of Common Pleas of York County, and the plaintiff has appealed.
It is a rule so well established that it seems almost unnecessary to cite it, that in an appeal of this kind, we are required to read the record in the light most favorable to the verdict-winner.*fn* With that criterion in mind, there emerges from the 375-page printed transcript the following narrative of fact. Wayne R. Brown, the plaintiff, was a mechanic employed by the International Harvester Garage of York, which undertook to repair the "fifth wheel" of a tractor-trailer, owned by Shirks Motor Express, also of York. The fifth wheel of a tractor-trailer is, contrary to colloquial parlance, not a superfluity but a very vital piece of equipment. Looking something like a titled sun dial, it rests on the chassis of the tractor and performs the function of holding the trailer to the tractor. After this device had been repaired by International Harvester, the tractor
was delivered to the terminal of Shirks Motor Express where the trailer was to be attached.
Wayne R. Brown, who had done the repair work on the fifth wheel, was accompanied by another employee of International Harvester, Norman Crone, to the Motor Express terminal where they discussed with John D. Sherman, the driver of the tractor, the attachment of the trailer to the tractor. Sherman backed the tractor into the trailer and, although connection was effected, it developed that the bond between the two vehicles was not a secure one. The front end of the trailer, which was not the one which normally travelled with this tractor, did not stand as high as the regular Shirks trailer and, as a consequence, there was the likelihood that after a journey had been begun, the trailer might disconnect en route. Brown informed Sherman of this danger and asked him to leave the cab of the tractor and to come back to look at the problem they were facing. Sherman got down from the tractor and the three men stood on the road to discuss the situation. Brown informed Sherman that since the fifth wheel was loose on the frame it would be necessary to return to the shop where "we could get some light and some heat on the plate to repair it". Sherman replied that he would not move the tractor with the trailer attached; and Brown and Crone thus prepared to unlatch the trailer by releasing the locking mechanism.
The lever of the locking device, however, had slid back with the fifth wheel to a point "almost behind the tires," thus making it difficult of access and manipulation. When the tractor and trailer are joined together, there is practically no space between the two vehicles since the front end of the trailer sits on the fifth wheel, bringing the dual rear wheels of the tractor directly ...