Appeals, Nos. 168 and 171, April T., 1960, from judgments of Court of Common Pleas of Butler County, Sept. T., 1958, No. 50, in case of Raymond W. McElroy v. William ROZZI et al. Judgments affirmed.
William C. Robinson, with him Henninger & Robinson, for appellants.
Leo C. McCandless, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 194 Pa. Super. Page 185]
OPINION BY MONTGOMERY, J.
Plaintiff-appellee instituted this action of trespass against the appellants to recover damages which he sustained as the result of the alleged negligence of the appellants. The appellee was operating his automobile
[ 194 Pa. Super. Page 186]
in a southerly direction upon Legislative Route 10034 when it came into collision with a Euclid truck being operated by appellant ROZZI upon the business of the Ralph Myers Construction Company at a point where new State Highway Route 422 was being reconstructed upon a new location across Route 10034. The regular Highway No. 422 was closed and the road used by the appellee was one of the detours around the construction being carried on. The route across the new construction was used by the public generally as such and this fact was known to the appellant ROZZI. The truck was being operated across the detour road between two areas of new construction work on Route 422.
One week previous to the time of the accident when the appellee had proceeded along the same road, caution signs were in evidence and a flagman was present notifying him of the construction work in progress. Upon the afternoon of the collision there were no warning signs nor was there any flagman to warn the public of the construction work or of any dangers.
The appellee was following a jeep upon the highway at a distance of approximately two hundred feet. The jeep caused a cloud of dust to rise as it went across the new construction and swerved to avoid the Euclid truck. A bank on the side of the road prevented appellee from seeing the jeep swerve. He was then proceeding at a rate of speed of approximately twenty-five miles per hour. When he encountered the dust, he immediately applied his brakes and slowed his speed. As he proceeded into the dusty area, thirty feet in front of him the Euclid truck operated by ROZZI suddenly appeared crossing his right lane of travel. He then further applied his brakes and swung slightly to the left to avoid it but, nevertheless, collided with the left front wheel of the Euclid.
[ 194 Pa. Super. Page 187]
A verdict was rendered for the appellee. The court below refused to grant judgment n.o.v. or a new trial. Judgment was entered on the ...