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GASH v. LAUTSENHEZER. (12/05/61)

December 5, 1961

GASH, APPELLANT,
v.
LAUTSENHEZER.



Appeal, No. 96, March T., 1961, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 2121, in case of Eugene Gash v. William A. Lautsenhezer. Judgment reversed.

COUNSEL

Theodore M. Tracy, with him Stokes, Lurie & Tracy, for appellant.

David J. Armstrong, with him Dickie, McCamey, Chilcote & Robinson, for appellee.

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

Author: Musmanno

[ 405 Pa. Page 313]

OPINION BY MR. JUSTICE MUSMANNO.

On February 7, 1955, Eugene Gash, the plaintiff in this case, was driving his car, a 1953 Chevrolet, northwardly on Mosside Boulevard between Wilkinsburg and Monroeville when an accident occurred which resulted in his bringing suit in trespass against William A. Lautsenhezer, the defendant, the action resulting in a compulsory non-suit. He appealed.

The bizarre accident which produced the litigation evolved briefly as follows. Mosside Boulevard at the point of the untoward occurrence is about 18 feet wide and made up of "blacktop composition." The weather on the day of the unusual happening was cold but clear, the road not perceptibly icy except perhaps in some rare spots. Suddenly the plaintiff, Gash, beheld a car coming toward him on his own side of the road. To avoid the obviously impending collision he cut abruptly to the right. He hit the berm which, because of deep frozen ruts, became an unpassable barrier. The continuing momentum of the car, finding no outlet forward, swung the rear end toward the left, sweeping in a clockwise direction. The car skidded across the road and then, hitting the left berm, tilted, toppled and fell 15 feet into a gully at the bottom of the embankment. Through the gully ran a creek, the water carrying on its surface particles of ice.

[ 405 Pa. Page 314]

At the end of his tumultuous journey Gash found himself lying on what he at first thought was the floor of the car but which turned out to be the inside of the roof, the car having completely capsized in its precipitous descent. Taking inventory of his situation, amid the broken glass and wreckage of his car, Gash concluded that despite the calamity he might have suffered he had sustained only an injury to his right leg. However, another possible calamity now obtruded. The car was wedged in the gully in such a fashion that neither door (it was a two-door car) could be opened and the creek was flowing through it, with its particles of ice.

Gash could hear automobiles passing on the highway above, but despite his continued blowing of the horn of his car, he could attract no one to heed his plight. As his perilous state continued and augmented in gravity, something quite extraordinary happened. He felt a sudden jolt and his car spun around in the creek, releasing him from the imprisoning wreck and icy jailor. He looked to see what had occurred and found that another car had come to join him in the creek. It was because of this almost miraculous and certainly fortuitous visitation that possibly his life was saved, even though in the succoring process he sustained another injury, this time to his back.

As a result of this second injury he sued William A. Lautsenhezer, the man who, willingly or unwillingly, had provided the means for extricating Gash from the watery trap which might eventually have cost him his life. But we are here not concerned with the morals or ethics of the situation. We are passing only on the legal aspects of the strange event. Moreover, it is by no means fatefully written that the arrival of Lautsenhezer in his own way constituted a wholly Samaritan interposition. What turned out ...


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