Appeal, No. 54, March T., 1963, from order of Court of Common Pleas of McKean County, Oct. T., 1961, No. 140, in case of Joseph K. Niklas v. Edward E. Zarnick, also known as Ernest Zarnick. Order affirmed.
R. T. Mutzabaugh, with him Mutzabaugh & Mutzabaugh, for appellant.
Philip F. Jacobus, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE COHEN
This is an appeal from the order of the court below granting a new trial in a trespass action involving
plaintiff-appellee, Joseph Niklas, and defendant-appellant, Edward Zarnick.
The evidence discloses that about 6:00 p.m., on February 3, 1961, appellee's truck became immobilized at the foot of a hill during the course of an unusually heavy snowstorm. Near the point where appellee stopped the highway curves to the right in the direction in which both he and appellant were traveling. There were high snowbanks on the shoulder of the road and appellee's truck was parked next to the shoulder in the right lane of the two-lane highway.
Appellee alighted from his truck and was attempting to start it when he noticed the diffused lights of a vehicle rounding the curve. As appellant's vehicle approached, appellee stood in the highway opposite the driver's side of his own vehicle and attempted to attract the attention of appellant by waving his arms. Appellant failed to see appellee until he was a car length from him at which time he applied his brakes in an effort to swerve around him. Appellant's vehicle struck the rear fender of appellee's truck causing it to swing around and hit appellee.
At trial, appellant moved for a compulsory non-suit on the ground that appellee was contributorily negligent as a matter of law. The lower court denied this motion. At the close of argument, appellee requested five important points for charge which he later withdrew because of a misunderstanding.*fn1 The jury returned a verdict for appellant and appellee moved for a new trial reserving the right to file additional reasons within thirty days after transcription and filing of the record.
Within the thirty day period, appellee discovered evidence indicating that appellant gave false testimony on the nature and ...