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LIUZZO v. MCKAY. (05/08/59)

May 8, 1959


Appeal, No. 28, March T., 1959, from judgment of Court of Common Pleas of Somerset County, No. 704 Continuance Docket, 1957, in case of Margaret Liuzzo, administratrix of the estate of Ralph E. Liuzzo v. Charles McKay et al. Judgment affirmed; reargument refused July 2, 1959. Trespass. Before LANSBERRY, P.J. Compulsory non-suit entered in favor of one defendant and verdict directed for remaining defendants; motions to grant a new trial or take off compulsory non-suit refused, and judgment entered. Plaintiff appealed.


Leland W. Walker, with him Walker & Kimmel, for appellant.

Archibald M. Matthews, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Mcbride

[ 396 Pa. Page 184]


Ralph E. Liuzzo was killed in a motor vehicle accident on June 28, 1956 and as a result this action in trespass was instituted against the defendants by his widow, Margaret Liuzzo, as Administratrix of his estate. At the close of plaintiff's testimony a compulsory non-suit was entered as to Bucks Rental Co., and at the close of all the testimony the trial judge directed a verdict in favor of Charles McKay, Miller Bros. and Co., Inc. and John Russell Nice. The court below refused to grant a new trial or take off the compulsory non-suit and plaintiff appealed.

Plaintiff contends that it was not the function of the court to say, as a matter of law, that the defendant McKay was free of negligence and that decedent was guilty of contributory negligence. The evidence which plaintiff presented of McKay's negligence came from the testimony of state trooper, Blomgren, who investigated the accident. The state trooper testified as to the facts he found upon his investigation and as to a statement made to him by Nice, whom he interviewed at the scene of the collision. While this statement was clearly hearsay evidence as to McKay, who was not present when it was made, there was no objection to it at the trial and on appeal it will be considered as competent evidence. Interpreting the testimony of the state trooper most favorably to plaintiff, as we are required to do, the pertinent facts are:

On June 28, 1956, at about 9:45 p.m., on a clear, dry night, decedent was operating a tractor-trailer in an eastwardly direction on the Pennsylvania Turnpike. Charles McKay, was operating a tractor-trailer owned by Miller Bros. and Co., Inc., in the same direction, in the right or slow lane of the highway, some distance in front of decedent. According to Nice's statement, as the two tractor-trailers proceeded east, they were both passed by an automobile operated by Nice. Nice's car

[ 396 Pa. Page 185]

    went out of control almost immediately after passing the tractor-trailer of McKay and went off the hard surface of the highway on to the berm of the road, creating a cloud of dust. At this time McKay, who was going between 35 and 40 miles an hour slowed his vehicle and drove to the left or fast lane of the highway in order to pass in safety. The state trooper also testified to a statement made to him by McKay at the scene of the collision. This statement showed how McKay, when faced with this sudden emergency, immediately applied his brakes and "was trying all ways to miss him ...". In attempting to "miss him" McKay, seeing the cloud of dust off on the right, slowed his vehicle and turned to the left in order to avoid the vehicle which was concealed in this cloud of dust. However, the car of Nice came out of the dust, made a U turn and proceeded in a westwardly direction in the eastbound lane of the Turnpike directly toward McKay. McKay therefore veered back onto the right or slow lane in an attempt to avoid a collision. His attempt to avoid Nice's automobile almost succeeded. However, the left rear tandem wheels of the tractor-trailer collided with the automobile. At this time his speed was reduced to about 15 miles per hour. As the tractor-trailer and Nice's automobile were thus engaged, they were violently struck in the rear by the tractor-trailer operated by the decedent. There is no evidence in the case as to the speed at which decedent was operating the tractor-trailer immediately before the accident or in which lane of the highway he was travelling. That is all the evidence plaintiff presented as to negligence in her case in chief. The trial judge granted the motion of Bucks Rental Co. for a compulsory non-suit but denied the motions of MacKay and Miller Bros. and Co., Inc. The last named defendants then presented their evidence. Plaintiff is, of course, entitled to any help her case receives from any fair inference from

[ 396 Pa. Page 186]

    this testimony. Upon analysis, however, this testimony reinforces McKay's version of the accident as he explained ...

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