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SMAIL v. FLOCK (04/17/62)

April 17, 1962

SMAIL
v.
FLOCK, APPELLANT.



Appeals, Nos. 75 and 76, March T., 1962, from judgment of Court of Common Pleas of Westmoreland County, April T., 1960, No. 48, in case of William G. Smail, administrator of estate of LeRoy G. Smail, deceased, Grace Weightman, John R. Weightman et al. v. Harry G. Flock, trading as Flock Brothers. Judgments affirmed.

COUNSEL

Daniel J. Snyder, with him Avra N. Pershing, Jr., and Pershing and Snyder, for appellant.

Joseph M. Loughran, with him Loughran & Loughran, for appellee.

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

Author: Musmanno

[ 407 Pa. Page 150]

OPINION BY MR. JUSTICE MUSMANNO

LeRoy G. Smail was killed when the automobile which he was driving collided with a tractor-trailer operated by Floyd Lottman employed by Harry G. Flock, t/a Flock Brothers, the defendant in this case. In Smail's car were his two daughters Mrs. Grace Weightman and Mrs. Martha Nye, who, through their individual husbands, brought suits in trespass against the defendant and recovered verdicts, which have not been contested. Accordingly, their cases are not before us for review. William G. Smail, administrator of the estate of LeRoy G. Smail, brought wrongful death and survival actions against the defendant, and the jury returned verdicts in favor of the plaintiff in those actions in the sums of $17,913.35 and $24,466 respectively.

In the court below the defendant moved for a new trial, alleging trial errors and excessive verdicts. The motion was refused and the defendant appealed to this Court.

The tragic accident happened as follows. On January 11, 1960, LeRoy G. Smail, a 61-year-old dairy farmer was proceeding southwardly on the Mt. Pleasant-Greensburg Road in Westmoreland County, the

[ 407 Pa. Page 151]

    weather dry, clear and cold. When he reached a point known as Lynch's Curve, made up of a sharp, almost 90-degree turn, the defendant's tractor-trailer, moving forward in the opposite direction, failed to properly negotiate the curve, crossed over to the Smail side of the road and struck his automobile with such force that the tractor-trailer, which was loaded with 52,000 pounds of pea coke (also referred to as coke ashes) overturned onto the Dodge sedan, burying it in an avalanche of ashes. One witness testified that some of the ashes were thrown 58 feet into a yard adjoining the road, also that the tractor-trailer made marks in the road for 25 feet, all indicating that the heavy vehicle, as it endeavored to round the curve, was traveling at a high rate of speed. Smail was smothered to death in the flood of ashes and the two women passengers were seriously injured.

Since the collision occurred on the defendant's wrong side of the road, he was confronted with the evidentiary burden of explaining what his truck was doing where, under the circumstances indicated, he had no right to be. The driver of an automobile whose vehicle, at the time of an untoward encounter on the highway, is shown to be on its wrong side of the thoroughfare, is ipso facto tainted with negligence, and it devolves upon him to wipe away that taint with evidence which satisfies a jury that he was not at fault.*fn1 The defendant Flock attempted to accomplish that cleansing by producing a person, A. J. McKelvey, described as a heavy equipment appraiser, to show that the defendant's truck capsized because of a defective or broken spindle.

Defendant's counsel made his offer in the following language: "[We] expect to prove that Mr. McKelvey made an examination of ...


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