Appeal, No. 107, Jan. T., 1961, from judgment of Court of Common Pleas of Delaware County, Dec. T., 1958, No. 1574, in case of John Charles Thomas v. John Ribble et al. Judgment affirmed.
Howard Richard, for appellant.
Ralph B. D'Iorio, with him George J. McConchie, and Hodge, Hodge & Camp, for appellee.
Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN.
This is an appeal from the judgment of the Court of Common Pleas of Delaware County refusing to remove a non-suit entered in favor of defendant-appellee, John Ribble.
The action was commenced to recover damages for personal injuries sustained in an accident on June 14, 1957. Testimony at trial revealed the following facts:
Ribble purchased a used 1955 Packard automobile with power brakes from a man approximately five feet tall on March 25, 1956. The automobile at that time was equipped with a block of wood attached to the accelerator pedal. The block was covered with rubber facing including a heel pad, thus giving it the appearance of a normal accelerator pedal. However, the block raised the level of the accelerator to the height of the brake. Witnesses stated that the abnormal similarity of plane or level that characterized the brake and the accelerator pedals was apparent to anyone who looked carefully.
The front seat was also on blocks of wood approximately two inches high. The blocks under the seat were removed by Ribble within a week of the purchase of the car but the block on the accelerator was not removed until after the accident. During the period from March 27, 1956 until June 14, 1957, Ribble drove the automobile approximately 18,000 miles. On June 14, 1957, Ribble took the automobile to Bertolett Motor Company, additional defendant, for repairs, left the car inside the garage and told the assistant service manager what repairs were to be made. At no time prior to June 14, 1957, when plaintiff had his car in for service, nor on that date, did Ribble inform anyone at Bertolett of the existence of the block attached to the accelerator. Additional defendant Sees, service manager, who had worked for about twenty years with Packard automobiles and who also was a Packard owner, drove the automobile into an empty bay before assigning a mechanic to repair the automobile. The plaintiff-appellant Thomas, a mechanic, was working at a bench near the wall at the end of the bay. As Sees attempted to apply the brakes for the first time his foot simultaneously struck both the brake and the built-up accelerator, causing the automobile to lurch forward. The automobile struck Thomas and caused an injury
which subsequently required amputation of his leg. Thomas brought suit against Ribble to recover for the injuries sustained. Ribble joined George Sees and ...