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SOLLINGER v. HIMCHAK (ET AL. (01/04/61)

January 4, 1961

SOLLINGER
v.
HIMCHAK (ET AL., APPELLANT).



Appeals, Nos. 162, 163, and 164, March T., 1960, from judgments of Court of Common Pleas of Butler County, March T., 1960, Nos. 404, 405, and 406, in case of Barbara Sollinger, a minor, et al. v. A. H. Himchak et al. Judgments affirmed.

COUNSEL

Leo C. McCandless, for appellant.

William C. Robinson, with him Henninger & Robinson, for appellee.

George S. Goldstein, with him Saul J. Bernstein, John P. Spina, and Campbell and Bernstein, for appellees.

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

Author: Eagen

[ 402 Pa. Page 234]

OPINION BY MR. JUSTICE EAGEN.

On a bright, clear and dry afternoon, automobiles operated by A. H. Himchak and Edith Malvincini, respectively, collided on Route 8, a main highway running between the cities of Pittsburgh and Butler, Pennsylvania. Three guest passengers in the Malvincini car were injured and sued Himchak. Edith Malvincini, who subsequently died from causes in no way connected with the accident, was brought upon the record as an additional defendant. A jury trial resulted in a verdict for the plaintiffs against both defendants. From the entry of judgments following the denial of motions for a new trial and judgment non obstante veredicto, the additional defendant appeals.

The original defendant, Himchak, did not appeal and an examination of the record discloses more than ample evidence to sustain the jury's conclusion that his careless driving was causative negligence of the accident. We are also satisfied, under the circumstances presented, that it was for the jury to resolve the question of the existence of negligence on the part of Edith Malvincini.

The road involved was a three-lane concrete highway and at the point of collision was straight but located on the brow of a very slight grade running from both directions. The cars were traveling in opposite directions. Himchak, south; Malvincini, north. There existed a clear view to the north of from 500 to 700 feet, except that, approximately 200 to 300 feet north of the point of impact, there was a dip in the roadway extending in length for approximately 75 feet. An automobile traveling south, while in the dip, would be

[ 402 Pa. Page 235]

    momentarily hidden from the view of one south of the point of impact, the length of time depending, of course, upon the speed of the vehicle coming south. In other words, Edith Malvincini, from at or about the point of impact, could see the Himchak car traveling south, before it entered the dip for a distance of approximately 700 feet, could continue to see it as it approached the dip and could see it again when it emerged from the dip for a continuing distance of approximately 300 feet.

Upon the occasion concerned, the Malvincini automobile was in the process of making a left-hand turn off the highway at a 45 degree angle, in order to stop at a fruit stand located on the westerly side of the highway. In order to do this, it had to leave its lane of traffic and cross over two other lanes of traffic, one reserved for traffic coming in the opposite direction. The front of the Himchak car hit the right-hand side of the Malvincini car at almost dead center. At that moment, the front wheels of the latter car were off the concrete and on the berm adjacent to the highway, a substantial portion of the car still being on the concrete in the lane of traffic legally used by cars traveling south. There was evidence that, moments before the collision, the Himchak car was traveling in its proper lane at a rate of ...


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