Before GANEY and SMITH, Circuit Judges, and AUGELLI, District Judge.
The plaintiff, Louis W. Silverii, Administrator of the Estate of Dominick J. Mash, Deceased, appeals from the judgment entered in the district court for the Eastern District of Pennsylvania, setting aside a verdict against the defendants, Wilson Kramer and John W. Price, in an action brought to recover damages through the death of plaintiff's decedent which resulted from a rear-end collision on Route 22, near the Fullerton exit, in the Commonwealth of Pennsylvania. Jurisdiction is based on diversity of citizenship, and by reason of the fact that the accident occurred in Pennsylvania, the law of that State governs.
After the plaintiff had rested his case, which was tried before a jury, the defendants moved for a directed verdict, which motion was denied. The defendants offered no testimony and the case was submitted to the jury which returned a verdict in favor of the plaintiff under the Pennsylvania Wrongful Death Act*fn1 and the Survival Act,*fn2 in the amount of $73,135 in favor of the widow and three children on both causes of action. The court later entered an order directing judgment n.o.v. in favor of the defendants with the further direction that if the judgment was reversed by the Court of Appeals, the defendants' motion for a new trial was to be granted.
The record discloses that on December 3, 1946, at about 2:30 a.m. on Route 22 in Whitehall Township, about one mile north of Allentown, Pennsylvania, the appellant met his death instantly when the tractor-trailer which he was operating collided with the rear end of the tractor-trailer driven by the defendant, Price, and owned by the defendant, Kramer. Route 22 runs approximately east and west and comprises a four-lane highway, two lanes on each side of a medial strip about four inches in height. The Fullerton exit consists of a ramp running off the right lane of Route 22 and this concrete ramp, leading to the Borough of Fullerton, forms, with the right lane of Route 22, a triangular or V-shaped area, composed of earth and grass, alongside of which is berm or shoulder, eight to ten feet in width, sufficient for a truck to travel on, composed of stones and earth, forming a smooth surface which parallels the cement portion of the highway in an eastwardly direction, far beyond the area here in question.
There were no eyewitnesses to the happening of the collision, except the driver, Price. He was not called to testify by the defense, but was called only in the plaintiff's case, and it is necessary to reconstruct much of its happening, by circumstantial evidence, from the measurements of record, showing the distances both trucks traveled from their respective positions, the time it took and the testimony of the witnesses with respect to these positions and measurements.
In so doing, the canon of interpretation for judicial review requires us to accept as true all the facts which the evidence tends to prove, drawing against the party making the motion all reasonable inferences most favorable to the party opposing the motion, and if the evidence is of such character that reasonable men, in an impartial exercise of their judgment may reach different conclusions, the case should be submitted to the jury. Turner v. Atlantic Coast Line R. Co., 5 Cir., 292 F.2d 586, 587; Galloway v. United States, 319 U.S. 372, 63 S. Ct. 1077, 87 L. Ed. 1458; Swift & Co. v. Morgan & Sturdivant, 5 Cir., 214 F.2d 115, 116, 19 A.L.R.2d 924; Atlantic & Pacific Stores, Inc. v. Pitts, 4 Cir., 283 F.2d 756, 757; Budge Manufacturing Co., Inc. v. United States, 3 Cir., 280 F.2d 414, 416; Gash v. Lautsenhezer, 405 Pa. 312, 176 A.2d 90. Likewise, in Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 35, 64 S. Ct. 409, 412, 88 L. Ed. 520, the Court states: "It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 571, 572 [10 S. Ct. 1044, 34 L. Ed. 235]; Tiller v. Atlantic Coast Line R. Co., supra [318 U.S. (54) 68, 63 S. Ct. (444) 451 (87 L. Ed. 610)]; Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 354, [63 S. Ct. 1062, 1064, 87 L. Ed. 1444]."
The defendant, Price, was the driver of a tractor-trailer, thirty-five feet in length, loaded with 15-16 tons of coal, and was proceeding eastwardly in the right lane of Route 22 when about 1500 feet west of the Fullerton exit, his left thirty-five feet in length, loaded with 15-16 tons of coal, and was proceeding eastwardly in the right lane of Route 22 when about 1500 feet west of the Fullerton exit, his left rear tire blew out and he proceeded to the nearest place where he would have the opportunity to drive off the highway and change the tire. The place he chose was the V-shaped or triangular area, heretofore described, formed by the junction of the Fullerton exit's eastern ramp and the right lane of Route 22. A portion of the rear of the defendant's truck was on a part of the concrete surrounding the V-shaped area, the front thereof facing eastwardly and directly in front of the berm, running along the cement portion of the highway. It took him about twenty minutes to replace the blown-out tire and he was helped in the operation by a young man whom he had picked up at the site, whose name he did not know and who was not available at the trial. He said that he noticed all the lights of his tractor-trailer burning when he went around the rear of it and removed a block which was under one of the wheels and that he looked up the highway to the west and saw no lights whatsoever of an approaching vehicle; that he proceeded along the trailer and got into the cab and looked through his rear-view mirror and again saw no lights coming toward him. He further testified that "I pulled out down the highway." and then the following colloquy ensued:
"Q. Now, what was the position of your truck when the accident happened?
"A. Straight on the highway going east.
"A. Going east on the ...