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WEISMAN v. SAUDER CHEVROLET COMPANY. (01/16/61)

January 16, 1961

WEISMAN, APPELLANT,
v.
SAUDER CHEVROLET COMPANY.



Appeals, Nos. 266 and 267, Jan. T., 1960, from judgments of Court of Common Pleas of Lancaster County, June T., 1959, No. 22, in case of Louis Weisman, administrator of estate of Clayton H. Martin, also known as C. H. Martin, deceased, v. Sauder Chevrolet Company et al. Judgments reversed.

COUNSEL

John W. Beyer, with him Arnold, Bricker, Beyer & Barnes, for appellant.

Ralph M. Barley, with him John C. Pittenger, and Barley, Snyder, Cooper & Mueller, for company, appellee.

Robert E. Porter, with him Greenwell, Porter, Smaltz & Royal, for appellees.

W. Hensel Brown, Jr., and Brown & Zimmerman, for additional defendant, appellee.

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

Author: Musmanno

[ 402 Pa. Page 273]

OPINION BY MR. JUSTICE MUSMANNO.

Clayton H. Martin was killed in his car which was being towed by an automobile of the Sauder Chevrolet Company. The administrator of his estate brought death and survival actions against the Sauder Chevrolet Company, which brought in as an additional defendant Kathryn A. Mauer, the driver of the car which

[ 402 Pa. Page 274]

    collided with the Martin car. At the trial the Court of Common Pleas of Lancaster County entered a compulsory non-suit against the plaintiff, and the plaintiff appealed.

In considering the removal of a non-suit we are to read the record in the light most favorable to the plaintiff and allow to the plaintiff the benefit of all inferences logically and fairly rising from the evidence presented in his behalf. Applying that standard of review to the record, the lower court would have been justified in concluding that the accident happened in the following manner and, that being so, it should have stayed its decision of non-suit.

On January 12, 1959, Clayton Martin informed Robert I. Buckwalter, service manager of the Sauder Chevrolet Company in Manheim, that his car, a Chevrolet, had broken down in Liverpool, Mifflin County, and requested Buckwalter to repair it. Buckwalter agreed to perform the work and set off for Liverpool in his car (a Buick) with Martin. In Liverpool Buckwalter made some temporary adjustment to the disabled Chevrolet and Martin was able to drive it under its own power as far as Harrisburg. At this point, however, it became apparent that the disablement was of such a character that the Chevrolet could no longer proceed independently. Buckwalter accordingly attached a 10-foot chain to its left forward bumper support and fastened the other end to the rear bumper support of his Buick.

All apparently went well for some 20 to 25 miles, but as dusk set in and the road began to darken, something apparently happened to the steering gear. In any event, the Chevrolet did not follow the Buick in a direct line. It wove and swayed from one side of the road to the other as it slavishly responded to the tug on the chain. The cars had now reached an elevation

[ 402 Pa. Page 275]

    on the Route 72 they were traversing, known as Bismarck Hill where the road drops and curves and, continuing on a downgrade, proceeds through woods to a point known as Hull's Tavern. Martin and Buckwalter took the descent at a speed of from 35 to 40 miles an hour.

Route 72 in this area consists of two lanes - one northbound and the other southbound - so that to leave one lane means invading the other where the traffic moves in the contrary direction. While still on the descent in the southbound lane, the Chevrolet swung sharply to the left into the northbound lane; it then veered drastically to the right, reaching the verge of the macadam; and then again shot across to the northbound lane. While all this was happening Buckwalter seemed to be deaf, dumb and blind to the turbulence behind him. Finally, toward the end of the violent maneuvering of the Martin car, Buckwalter awakened to the fact that something was wrong. He testified: "All of a sudden I felt the chain pull the rear of my car to the left. I took a firmer grip on the steering wheel as the car being towed was supposed to be directly back of me and was not at the time I looked front."

However, it was now too late to arrest what was in the tragic making. On the second veering to the left, Martin headed directly into the path of a car coming in the opposite direction. The inevitable collision was head-on, and Martin was killed instantly.

At the trial, the plaintiff offered as an expert witness E. Paul Brill for the purpose of showing that Buckwalter was negligent in the manner he prepared for and conducted the towing job. Brill was an expert tower having been in that business for 20 years with a record of having towed some thousand cars a year. When asked by defendant's ...


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