Appeal, No. 63, March T., 1961, from judgment of Court of Common Pleas of Mercer County, Sept. T., 1960, No. 699, in case of William Brazel v. Robert L. McMurray et al. Judgment affirmed; reargument refused June 22, 1961.
Cyril T. Garvey, with him Evans & Garvey, for appellant.
William J. Joyce, with him Martin E. Cusick, and Wiesen, Cusick, Madden, Joyce, Acker and McKay, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
The night of March 27, 1954, was a fateful one for William Brazel, the plaintiff in this case. Leaving his home in Sharon, where he had worked during the day, he boarded a bus for Farrell with the intention of witnessing a basketball game to be played in the high school of that town. Arriving in Farrell he stopped in at a beer garden about 7:45 p.m., to refresh himself with a bottle or two of beer. Here he learned that no tickets were available for the game. Apparently as fond of beer as he was of basketball he made no attempt to get to the high school and remained where he was, enjoying his favorite beverage. It was a rule at the beer garden that just before closing time one could purchase extra bottles and consume them on the premises. This gave Brazel occupation until 2 a.m., when he left to catch a bus returning him to Sharon.
To reach the bus stop he walked in an eastward direction along Route 418. The area being a rural one, no sidewalks flanked the highway so he took to the open road, keeping, however, some 2 or 3 feet away from the berm. Although not staggering, his pace was an unsteady one and when he reached a point close to the intersection of Route 418 with Pine Hollow Boulevard in Hickory Township, Mercer County, he stepped into the path of a car traveling also in an eastward direction. The driver of the car attempted to avoid him by swinging sharply to his right but the maneuver was unsuccessful. The left front of the car hit the plaintiff and when the car came to a stop the front end was in a ditch on the southern side of the highway, and the rear end angled out into the highway, forming a barrier across the eastbound lane.
The operator of the car, Robert L. McMurray, and a guest passenger, J. J. Phillips, hurried to the body of the pedestrian lying inertly in the road some 4 or 5 feet to the left of the rear end of the car. Although
undoubtedly injured, Brazel was conscious and exhibited no bleeding. While McMurray went to a neighbor's house to telephone for an ambulance, Phillips moved back some one hundred feet on the highway with a flashlight in his hand to warn all cars traveling eastwardly of the injured man on the road and the car blocking the southern half of the highway.
Four or five cars heeded his signaling and drove around the obstructions, but one car (ascertained later to be driven by Stanley Buchanan) ignored his warnings and dashed toward him at 55 to 60 miles an hour. When it became apparent to Phillips that Buchanan did not intend to stop, now being only 20 feet away, he leaped aside and the car continued unabatedly ahead, striking the McMurray car with undiminished velocity and skidding 102 feet before it came to a stop. When the violence subsided, the McMurray car was found to have been completely spun around and the body of William Brazel was found twenty feet further to the east from its first resting place, and it was now bleeding.
Brazel brought actions in trespass against both McMurray and Buchanan. At the trial the Court, after the plaintiff had produced his evidence, entered a compulsory non-suit in the action against McMurray. The trial then proceeded to verdict and the jury awarded the plaintiff $8,000 in his suit against Buchanan.
Buchanan moved for judgment n.o.v. and for a new trial. Both motions were refused and Buchanan appealed.
It is the appellant's contention that the plaintiff came to grief because of his drunken condition and that, therefore, he was guilty of contributory negligence as a matter of law. This contention is based on the supposition that the double striking of the plaintiff constituted a single episode and that if McMurray was excused from liability ...