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MITCHELL v. SHIREY (ET AL. (04/17/62)

April 17, 1962

MITCHELL
v.
SHIREY (ET AL., APPELLANT).



Appeals, Nos. 23, 24, 25 and 26, March T., 1962, from judgments of Court of Common Pleas of Jefferson County, April T., 1959, No. 55, and April T., 1960, Nos. 42, 41 and 39, in case of Norman A. Mitchell, Elmer LeRoy Johnson, Samuel G. Mitchell et al. v. Malvin Earl Shirey, Bernice Sherry and John K. Sherry, also known as J. K. Sherry, individually and doing business as John Sherry Lumber Company, and John B. Kaufman, administrator of the estate of Fred Kaufman, deceased. In each case judgment against additional defendant reversed.

COUNSEL

William W. Caldwell, with him Walter E. Morris, Thomas D. Caldwell, and Caldwell, Fox & Stoner, for appellant.

Samuel J. Margiotti, with him William J. McKnight, and Margiotti & Casey, for appellees.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Eagen

[ 407 Pa. Page 206]

OPINION BY MR. JUSTICE EAGEN

The plaintiffs, Norman A. Mitchell, Elmer LeRoy Johnson, Samuel G. Mitchell and John J. Milchuck, were guest passengers in an automobile operated by Fred Kaufman,*fn1 which collided with a flat-bed truck operated by Malvin E. Shirey and owned by his employer, John K. Sherry.

The plaintiffs instituted separate actions against the driver (Malvin E. Shirey) and the owner of the truck (John K. Sherry) to gain compensation for the injuries received. In each case, Kaufman's Estate was then brought on the record as an additional defendant. A jury trial resulted in verdicts in favor of all plaintiffs against both the original defendants and the additional defendant.

A motion for a new trial on behalf of the additional defendant (Kaufman's Estate) was denied by the court below. The correctness of this ruling is now before us on this appeal.

The collision occurred at the intersection of Highway Route 536 and Porter Road in Perry Township, Jefferson County, Pennsylvania. The motor vehicles involved were traveling in opposite directions on Route 536, a concrete two-lane highway. At the point of collision, the highway curves very gradually to the right for westbound traffic (Kaufman's auto was traveling west); the grade is practically level. As the vehicles passed each other, the flat-bed section of the truck sheared open the left side of the Kaufman automobile and the force of the collision ripped the rear wheel completely off of the truck.

[ 407 Pa. Page 207]

One of the vehicles involved came over the center or white line of the highway and thus caused the collision. At trial, the factual issue in dispute was: Which motor vehicle was guilty of this infraction of the rules?

Three occupants of the car in which the plaintiffs were riding testified*fn2 that the truck crossed the center line of the highway. They stated that Kaufman tried to avoid the collision by pulling his automobile over near the berm on his side of the road. The only evidence of negligence on the part of the additional defendant, Kaufman, came from the oral testimony of the truck driver, Malvin E. Shirey. He testified, at trial, that the ...


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