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CAMPBELL v. FIOROT (06/05/63)

June 5, 1963

CAMPBELL
v.
FIOROT, APPELLANT.



Appeal, No. 102, Jan. T., 1963, from order of Court of Common Pleas of Northampton County, Nov. T., 1961, Nos. 71 and 81, in case of Thomas E. Campbell, administrator of estate of Sterling Campbell, also known as Sterling C. Campbell, deceased, and Mildred L. Altemus, administratrix of estate of Clifford W. Campbell, deceased, v. Frank Fiorot, Merlin C. Tucker and Thomas J. Waters, doing business as Fiorot Trucking Company, et al. Order affirmed.

COUNSEL

E. Jerome Brose, with him Danser, Brose & Postwistilo, for appellants.

Norman Seidel, with him James C. Hogan, Andrew L. Herster, Jr., Robert H. Littner, and Hogan & Scott, and Gross & Herster, and Mindlin, Sigmon, Briody & Littner, for appellees.

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

Author: Musmanno

[ 411 Pa. Page 158]

OPINION BY MR. JUSTICE MUSMANNO

Sterling Campbell and his son Clifford Campbell were killed on December 8, 1960, at about 5:30 in the morning, when the car in which they were riding came into collision with the trailer of a tractor-trailer being driven by Leonard C. Parsons of the Fiorot Trucking

[ 411 Pa. Page 159]

Company in Northampton County at a point on Tatamy-Bushkill Park Road between Northwood Avenue and Walter Avenue. The administrators of the estates of the deceased Campbells brought Survival actions against the owners of the Fiorot Trucking Company and the driver Leonard C. Parsons. The jury returned a verdict for the defendants. The plaintiffs moved for a new trial which the Court allowed. The defendants appealed.

The record would indicate that the accident happened, briefly stated, as follows: Leonard C. Parsons, his tractor-trailer loaded with 39,500 pounds of slate slabs (each one weighing some 50 pounds) was descending the steep down-grade of Tatamy Bushkill Park Road, which was wet and slippery from falling snow which melted as it settled on its macadam surface, proceeding at a speed of some 30 to 35 miles per hour, a large sign off the highway proclaiming SLOW because of the dangerous grade and a sharp curve, when as he passed Northwood Avenue, he saw lights approaching from the opposite direction. Applying his brakes the trailer jackknifed to his left, straddling the northwardly lane in which the Campbell car was moving, and hitting the Campbell car latitudinously, avalanching the Campbells with the crushingly weighty slate slabs, killing them instantly.

At the trial, police officer Louis Kowitz, called by the plaintiffs, testified to a conversation he had had with the Parsons shortly after the accident wherein Parsons said that his trailer had "slid" over to the other side of the road. The trial judge, in charging the jury said: "While skidding, in and of itself, is not negligence it may be occasioned or may be the result of negligence. Where, as here plaintiff's case establishes that the accident resulted from the skidding of defendants' vehicle, plaintiff must go on to prove by the fair weight or preponderance of the evidence

[ 411 Pa. Page 160]

    that the skidding resulted from the negligence of the ...


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