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VENEZIALE ET UX. v. CARR. (11/11/59)

November 11, 1959

VENEZIALE ET UX., APPELLANTS,
v.
CARR.



Appeals, Nos. 355 and 356, Oct. T., 1959, from judgment of Court of Common Pleas of Chester County, May T., 1957, No. 16, in cases of Anthony Veneziale et al. v. Robert H. Carr, and Same v. William Behrndt, Jr. Judgment affirmed.

COUNSEL

William L. McLaughlin, for appellants.

Robert S. Gawthrop, Jr., with him Gawthrop & Greenwood, for appellees.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Watkins

[ 191 Pa. Super. Page 31]

OPINION BY WATKINS, J.

The accident that resulted in these appeals occurred about three and one-half miles north of Mifflintown, Pennsylvania, on state highway Route 322, at or about 3 o'clock a.m., on the morning of May 12, 1951.

[ 191 Pa. Super. Page 32]

A tractor-trailer owned by Anthony and Rose Veneziale, trading as Carmine Veneziale, the appellants, was being operated by their driver, Ernest Berilli, in a Northwesterly direction on state highway Route 322. He testified that he was operating the tractor-trailer at a speed "between thirty-five and forty miles per hour" within a thirty-five mile speed limit area. He was on a level stretch of highway coming out of a slight curve when his "lights picked up a dark object which was immediately revealed" to him as a tank-trailer about 108 feet from him and "turned over on its side directly across the road, it took up both lanes and part of the third."

At this point there was a steep mountain on the driver's right and a drop into a canal on the left protected by a guardrail. The driver estimated the width of the highway to be thirty feet, ten feet per lane, with a three-feet berm on the right and a two-feet berm on the left. He had his lights on and could see "as far as his lights shined."

When he saw what turned out to be a milk tank-trailer he "wheeled away from it toward my left so as not to hit the object" and in doing so, he testified, "I must have cut it too hard and I hit the guardrail and I went over the side." The left front wheel of the tractor-trailer caught on the guardrail, causing it to plunge over the side of the embankment. The vehicles did not come in contact in any way and the driver testified that there was sufficient space to his left between the overturned vehicle and the guardrail to pass safely.

The plaintiff appellants brought separate actions in trespass against Robert H. Carr, the owner of the milk tank-trailer and William Behrndt, Jr., the driver, the appellees. Both actions were tried together. The amount of the damage to the tractor-trailer ...


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