Appeals, No. 170 and 187, March T., 1960, from order of Court of Common Pleas of Erie County, May T., 1956, No. 8, in case of Joseph Murosky, administrator of estate of Thomas R. Murosky, deceased v. Jerome W. Spaulding et al. Order reversed; reargument refused January 3, 1961.
John A. Blackmore, with him Blackmore & Greishober, for appellants.
John E. Britton, with him Gifford, Graham, MacDonald & Illig, for appellant.
Will J. Schaaf, with him John A. Spaeder, and Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES.
These appeals present in slightly novel guise an old inquiry: do the circumstances warrant an appellate court in reversing the grant of a new trial in a trespass action by a lower court?
The factual background of this litigation was stated by Judge ERVIN speaking for the Superior Court in Murosky v. Spaulding, 188 Pa. Superior Ct. 306, 146 A.2d 339: "... Junod, with... Murosky as a passenger, was operating his vehicle in an eastwardly direction on U.S. Route 5 at about 10:00 p.m. on a rainy night.... Spaulding was operating his vehicle,... in the opposite or westwardly direction on the same highway. When Junod was at a point approximately 280 feet east of the 'T' intersection of Westwood Drive with Route 5, his vehicle came into contact with the Spaulding car, damaging it on the left front and left side. Junod's vehicle was damaged on the right side. Junod testified that, as he approached the point of
impact, he was traveling about 35 miles an hour because, as he said, it was not safe to travel any faster because visibility was bad. As he approached the scene of the impact a vehicle came over the rise of the road ahead of him and its headlights created a glare which covered his entire windshield. Interpreting the movement of the oncoming car as angling toward his side of the highway, Junod applied his brakes. He testified that his car went into a spin and the accident occurred. Spaulding's story was that he was traveling westwardly at about 20 to 30 miles an hour. He intended leaving the highway at about the point of impact in order to attend an open air movie theatre which was located to the north of the pavement some distance to the west of the scene of the collision. He testified that he first saw the Junod car on his side of the highway when it was some distance to the west of him. It returned to its own or south side of the highway and then it pulled directly across the road in front of him. Somewhere in the course of its travel across the highway it began to slide sideways and the two cars met on Spaulding's side of the road. Marlene Graham, Spaulding's passenger, corroborated his statement that the Junod car was on their side of the road at the moment of impact. One of the questions in the trial was whether there was a deposit of oil on Route 5 at and to the west of the point of impact. It was the theory of Junod that as he applied his brakes upon the sudden apprehension of danger created by the glare of lights on his windshield from a car which he thought was coming over to his side of the road, he went into a skid caused by the presence of oil on the road. This oil, it was claimed, had been tracked out onto the main highway by cars entering said highway from Westwood Drive, which had recently been oiled. The contact between the cars took place at a point 280 feet east of Westwood Drive..."
On February 14, 1956 a trespass action was instituted in the Court of Common Pleas of Erie County by Murosky, Administrator of his deceased son's estate, against Spaulding and Junod. On April 14, 1957 verdicts were returned in favor of Murosky and against both Spaulding and Junod, said verdicts being $1,332.93 in the death action and $3,000 in the survival action.*fn1 Murosky moved for ...