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SPIRKO v. EVERETT (06/15/61)

June 15, 1961

SPIRKO
v.
EVERETT, APPELLANT.



Appeals, Nos. 169 and 170, April T., 1960, from judgments of Court of Common Pleas of Westmoreland County, Oct. T., 1956, No. 455, and July T., 1956, No. 522, in cases of Fred Spirko, Jr. v. William Everett, Jr. et al., and Gulf Oil Corporation v. Same. Judgments affirmed.

COUNSEL

Avra, N. Pershing, Jr., for appellant.

Joseph M. Loughran, with him Everett S. C. Sorber, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Woodside

[ 195 Pa. Super. Page 492]

OPINION BY WOODSIDE, J.

These are appeals from the entry of judgments for the plaintiffs in trespass actions after the court below refused motions for new trials.

An automobile driven by the appellant Mrs. Everett struck a gas station of the Gulf Oil Corporation, damaging it and the property of the lessee, Fred Spirko. The automobile driven by the appellant and a motorcycle operated by Augustus Mellott had collided, causing the automobile to crash into the gas station. In separate actions, which were tried together, the owner and the lessee of the gas station sued both Mellott and Mrs. Everett. The jury exonerated Mellott, but found for both plaintiffs against Mrs. Everett. Mrs. Everett claims that she is entitled to a new trial because of alleged trial errors.

The gas station is located at the intersection of West Otterman Street and West Pittsburgh Street at the edge of Greensburg. At this point a four lane, two way highway separates into two one way streets. Mrs. Everett was operating her husband's automobile in an easterly direction on the four lane highway which for east bound traffic continues in a straight line. The west bound traffic, leaving the one way street to join the two way traffic on the four lane highway, enters the highway on an angle requiring traffic to make a right turn. As Mrs. Everett approached the place where the four lane highway separates, four westbound motorcycles turned onto the highway, and one operated by the defendant Mellott, collided with her automobile. After the collision she was unable to control her vehicle, and it struck the gas station.

[ 195 Pa. Super. Page 493]

The issue was whether either, both, or neither of the defendants negligently operated their vehicles, and, if there was any negligence, whether it was the proximate cause of the damages. There was a direct conflict in the testimony as to whether the collision took place north or south of the center line of the highway. The jury apparently concluded that the collision took place on the north, or Mellott's side of the highway, which put the appellant on the wrong side.

The appellant presses three reasons for a new trial.

First, she contends that the charge was prejudicial as to the point of collision. An investigating state police officer, who arrived at the scene shortly after the accident, testified to fresh gouge marks, oil and debris four feet from the center of the road in the lane for west bound traffic. In the trial judge's charge he properly reviewed the officer's testimony, but later said, "The State Police said that the marks where the collision took place were on the wrong side of the road." The state policeman did not see the collision and did not say where it "took place," but testified only to conditions on the highway from which the jury could conclude that the collision occurred in the lane where the appellant should not have been driving. The trial judge told the jurors numerous times that their ...


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