The opinion of the court was delivered by: KRAFT
These actions arose from a collision between two fire trucks in the intersection of Fifth Street and Edgmont Avenue, Chester, Pennsylvania, on August 27, 1955. Both vehicles were responding to the same alarm of fire. The actions were, without objection, consolidated for trial by the court.
The collision resulted in the death of Wright and in serious personal injuries to Collison, McDevitt and Owens.
Crowley, on whose behalf no action was brought, died in 1958 of natural causes.
In the suit by Wright's estate against Crowley's estate (C.A. 21,236), no objections were interposed by the defendant to the competency of any of the witnesses called to testify descriptively of the collision.
In the actions against both estates by Maryland Casualty Company, as subrogee, respectively, of Collison, McDevitt and Owens (C.A. 23,141, 23,142 and 23,143) numerous objections were made by counsel for the Crowley estate to the competency, under the Act of May 23, 1887, P.L. 158 (28 P.S. § 322), of Collison, McDevitt and Owens to testify in the respective suits in which they were statutory subrogors. Decision was reserved on these objections and the testimony received subject to ruling at the time of adjudication.
At the outset of the trial, counsel for all parties stipulated that the trial court's findings of fact might be limited to findings on negligence, contributory negligence and damages. Counsel for Crowley's estate requested, additionally, a determination of whether the right of recovery of Maryland Casualty Company, as subrogee, in each of its three suits was limited to the amount of Workmen's Compensation paid and payable by it under Pennsylvania law to Collison, McDevitt and Owens, respectively. All other findings of fact otherwise required by Rule F.R.Civ.P. 52(a), 28 U.S.C. were expressly waived by the parties.
From a careful review and consideration of all the evidence and exercising the opportunity to judge the credibility of the witnesses, the court makes the following
1. On August 27, 1955, about 6:00 A.M. (Daylight Saving Time), a collision occurred approximately in the middle of the intersection of Fifth Street and Edgmont Avenue, Chester, Pa., between a fire truck of Moyamensing Hose and Ladder Company, operated by Joseph Wright, and a fire truck of Hanley Hose Company, operated by William Crowley.
2. Walter Collison, Paul McDevitt and John Owens, volunteer firemen upon the fire truck operated by Wright, suffered severe personal injuries as a result of the collision.
3. Joseph Wright, operator of the Moyamensing Hose and Ladder Company truck, was killed in the collision.
4. At the time of the collision both fire trucks were responding to the same alarm of fire in the City of Chester.
5. Maryland Casualty Company as insurer of the employer of Collison, McDevitt and Owens paid to each of them the compensation required to be paid to them under the provisions of the Workmen's Compensation Act of Pennsylvania, 77 P.S. § 1 et seq.
6. Maryland Casualty Company brought each of the three suits in which it is plaintiff as statutory subrogee. Collison and Owens refused Maryland's request to each of them to bring suit. McDevitt was not so requested and did not refuse.
7. Immediately before the collision Crowley was driving the fire truck of Hanley Hose Company westwardly on Fifth Street toward Edgmont Avenue and Wright was driving the truck of Moyamensing Hose and Ladder ...