Appeal, No. 276, April T., 1962, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 1542, in case of Stanley Hajduk v. Earl E. Fague et al. Judgment affirmed.
Samuel L. Goldstein, with him Edward J. Balzarini, and Suto, Power, Goldstein & Walsh, for appellant.
David B. Fawcett, Jr., with him Dickie, McCamey, Chilcote & Robinson, for appellee.
Robert S. Grigsby, with him Pringle, Bredin & Martin, for appellee.
Marcus Aaron, II, Assistant City Solicitor, with him David W. Craig, City solicitor, for City of Pittsburgh, appellee.
Before Rhodes, P. J., Ervin, Wright, Watkins, Montgomery, and Flood, JJ. (woodside, J., absent).
[ 200 Pa. Super. Page 56]
OPINION BY MONTGOMERY, J.
This appeal involves an action in trespass in which the appellant sought damages from three defendants: Earl E. Fague, Auto Rental Company, and the Pennsylvania Railroad. The Pennsylvania Railroad named the City of Pittsburgh as an additional defendant. Appellant instituted proceedings to recover damages suffered by him on November 13, 1954, while he was riding as a guest passenger in a truck owned by the defendant Auto Rental Company and leased to and operated by the defendant Fague, when the truck struck and collided with an overhead pass or trestle owned and maintained by the defendant Pennsylvania Railroad Company on Merchant Street, in the City of Pittsburgh. The truck overturned and the appellant sustained the injuries set forth in his complaint.
The Pennsylvania Railroad joined the City of Pittsburgh, alleging that it was liable on the grounds that
[ 200 Pa. Super. Page 57]
it had changed the grade of Merchant Street causing a lessening of the clearance, and that although notified of the defective condition, had failed to restore or have restored certain clearance signs that had originally been placed there by the Pennsylvania Railroad.
On the morning of the day of the accident the defendant Fague had rented the truck for the purpose of moving certain furniture. He had requested the appellee, a fellow employee, to assist him in this task.
It was stipulated that defendant Auto Rental Company, prior to the accident, had notice of the insufficient clearance at the southerly approach to the underpass because of five other accidents involving vehicles leased by it which were damaged by the insufficient clearance. It was further stipulated that the Pennsylvania Railroad had knowledge of this defective condition and of the five similar accidents. Although, originally, there had been a clearance sign indicating the clearance at this point, the sign had been removed at least one year prior to the date of the accident involved herein.
There was a dispute at the trial whether defendant Fague had been warned of the dangerous condition at the underpass. Auto Rental Company produced evidence to show that it had posted signs in its office and in each of its trucks not to use the underpass in question. Fague denied that such signs were posted and said he was given no warning. Fague, called as for cross-examination, testified that he was operating the leased truck at the rate of five to seven miles per hour downhill toward the underpass, and had no knowledge that the clearance at this point was insufficient to permit the truck to pass underneath the trestle. He denied any notice had been given to ...