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LEAR v. SHIRK'S MOTOR EXPRESS CORPORATION. (07/02/59)

July 2, 1959

LEAR, APPELLANT,
v.
SHIRK'S MOTOR EXPRESS CORPORATION.



Appeals, Nos. 303 and 304, Jan. T., 1958, from judgment of Court of Common Pleas of Luzernce County, March T., 1957, No. 1069, in case of Betty Lear, administratrix of estate of Theodore F. Lear, deceased v. Shirk's Motor Express Corporation. Judgment reversed. Trespass for wrongful death and survival action. Before FLANNERY, J. Verdict directed for defendant, plaintiff's motion for new trial denied and judgment entered for defendant. Plaintiff appealed.

COUNSEL

Arthur H. James, with him Nelson A. Bryan, and James P. Harris, Jr., for appellant.

J. Thirwall Griffith, with him Bedford, Waller, Griffith, Darling & Mitchell, for appellee.

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

Author: Mcbride

[ 397 Pa. Page 146]

OPINION BY MR. JUSTICE MCBRIDE

This is a trespass action by Betty Lear, Administratrix of the Estate of Theodore F. Lear, deceased, to recover damages under the wrongful death act*fn1 and the survival act,*fn2 arising from the death of her husband, Theodore F. Lear, out of an accident allegedly caused by the negligence of defendant's employe, Melvin Seiger.

The accident occurred just before dawn on an August morning in 1956, on Route 11 near Hunlock Creek, Luzerne County. Route 11 is a three lane concrete highway and runs in a general north-south direction.

[ 397 Pa. Page 147]

The concrete portion of the highway is 33 feet wide and the berm on the right hand side of the highway adjacent to the northbound lane is 20 feet wide. Lear was driving a tractor-trailer unit in a northward direction and Seiger was driving a tractor-trailer unit, carrying heavy road machinery, in a southward direction. Plaintiff's testimony consisted only of evidence given by a state police officer who made an investigation and the introduction into evidence of three photographs taken by the police very shortly after the accident. The defendant presented no evidence at all. The Trial Judge directed a verdict in favor of defendant, a motion for new trial was dismissed by the court en banc, and judgment was entered on the verdict.

We learn from the opinion of the court below that the evidence and the photographs show:

"1. That there is a clear view of between two hundred and three hundred yards in either direction from the scene of ...


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