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MAYBERRY v. BLUE RIDGE SOIL PEP (01/16/61)

January 16, 1961

MAYBERRY
v.
BLUE RIDGE SOIL PEP, INC., APPELLANT.



Appeals, Nos. 262 and 263, Jan. T., 1960, from order of Court of Common Pleas of Monroe County, Sept. T., 1958, No. 54, in case of Frances Mayberry, administratrix of estate of Harold W. Mayberry, deceased, et al. v. Blue Ridge Soil Pep, Inc. Order affirmed.

COUNSEL

Harry P. O'Neill, Jr., with him Frank M. Walsh, Joseph J. McCluskey, and Walsh and O'Neill, for appellant.

Thomas J. Foley, with him Depuy & Hansen, for appellees.

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

Author: Musmanno

[ 402 Pa. Page 265]

OPINION BY MR. JUSTICE MUSMANNO.

Malcolm E. Gramley of the Pennsylvania State Police was standing at a window of the police barracks near Blakeslee looking out on Route 115 in Monroe County when an automobile collision occurred in front of the barracks. A truck traveling from south to north had left the highway and was traversing a stretch of cindered surface which paralleled the road, moving at a speed of 30 miles per hour. Within a few moments this truck crashed into another vehicle also off the highway on the same side as the northbound truck. Next to the barracks on its northern side, and setting back about 100 feet from the highway, there was a large garage easily accessible by a wide driveway, to traffic coming from either direction on Route 115. The location of the southbound truck after the collision supports the inference that it was bound for this garage when it moved away from the highway.

As a result of the collision, the driver of the southbound truck, Harold W. Mayberry, was killed. Frances Mayberry, administratrix of his estate, brought death and survival actions against the Blue Ridge Soil Pep, Inc., owners of the northbound truck. At the trial, the presiding judge directed a verdict for the defendant. The plaintiff moved for a new trial, and the court en banc, after hearing and argument, reversed the action of the trial judge by ordering a new trial. The defendant appealed.

[ 402 Pa. Page 266]

In an appeal of this nature all conflicts in testimony and inferences naturally rising from the testimony must be resolved in favor of the plaintiff. Guided by that standard of interpretation, we conclude from the record that the trial judge erred when he took the case away from the jury and rectified the error when he ordered a new trial.

Although Gramley was an eyewitness to the movements of the Blue Ridge truck before the collision, he did not see the actual impact with the Mayberry truck because the Blue Ridge truck raised considerable dust as it ploughed through the cinders under its wheels.

The lower court, in ordering a new trial, said: "Plaintiff's testimony established that defendant's truck left the north bound lane; ran off the east edge of the highway on to the graveled area in front of the barracks with the right front wheel in a partial lock; traveled forward in a northeastwardly direction intermittently stopping and moving for a distance of 51 feet and finally stopped when it came in contact with decedent's truck then 15 feet off the highway at the far end or northern end of the barracks. Plaintiff's testimony also established that defendant's truck left tire marks in the graveled area for a distance of 51 feet from the point of impact back to the easterly edge of the highway. From this testimony it is a reasonable inference that decedent's truck was off the highway before the defendant's truck and in full view of defendant's truck driver for a sufficient length of time to enable him to avoid the collision if his truck was under proper control."

The record justifies the deduction in the above statement that the Mayberry truck was already in the path of the Blue Ridge truck when the latter was advancing over the cindered area. It was for the jury under these circumstances to determine whether ...


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