The opinion of the court was delivered by: MARSH
In this diversity action the jury returned a verdict in favor of the defendants. Plaintiff moved for a new trial assigning the following grounds:
'1. The verdict was against the weight of the evidence.
'2. The verdict was contrary to law.
'3. The Court erred in failing to instruct the jury as to the Code of Federal Regulations insofar as it limited defendants' truck driver to an aggregate of ten hours of driving in any twenty-four hour period.
'4. The Court erred in failing to instruct the jury as to defendants' liability if the truck driver, Scott, had operated the tractor-trailer for over ten hours in the aggregate without an eight-hour rest, at the time of the collision.
'5. The Court invaded the province of the jury in its instructions as to the lack of evidence to support a finding that the driver, Scott, was an employee of A. Macaluso Fruit Company, and that he was acting in the course of his said employment.
'6. The Court failed to instruct the jury that the defendant, Indiana Refrigerator Lines, Inc., was liable as a matter of law for any negligence of the truck driver, Scott.
'7. The Court erred in failing to explain to the jury the acts of the two truck drivers, namely, of Scott and Snyder, which would have constituted negligence or contributory negligence.'
In my opinion the motion should be denied.
It was stipulated that the collision out of which this action arose occurred on January 26, 1958, at about 10:30 P.M., on the Pennsylvania Turnpike in West Pennsboro Township, Cumberland County, Pennsylvania.
Plaintiff's home was in Everett, Pennsylvania, about 8 miles from the Breezewood entrance to the Turnpike. The accident happened about 65 miles east of the Breezewood entrance.
It was stipulated that 'a collision occurred between the front end of the tractor-trailer outfit being operated by the plaintiff Snyder, and the rear of the tractor-trailer outfit being operated by Mr. Scott.'
The plaintiff testified that the range of his headlights on the straight stretch of the Pennsylvania Turnpike was 100 feet, but he failed to see a large, unlighted tractor-trailer slowly pulling onto the Turnpike until he was 50 feet away (T., pp. 13-14). The left side of the trailer was on the concrete (T., pp. 54-55). Plaintiff's version of the accident fully warranted the jury in finding that he was guilty of contributory negligence. In somewhat similar cases contributory negligence was found as a matter of law.
As foretold by the pleadings and pretrial proceedings, plaintiff contended that the cause of the rear-end collision and his injuries was that Scott negligently drove his vehicle without lights from the berm into the southernmost lane in front of him. This was the principal factual issue on liability litigated by plaintiff at the trial. Defendants contended that the plaintiff ...