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HOSE v. HAKE. (07/02/63)

July 2, 1963

HOSE, APPELLANT,
v.
HAKE.



Appeal, No. 27, May T., 1963, from judgments of Court of Common Pleas of York County, Oct. T., 1961, No. 206, in case of Gloria Hose, Thomas Hose and Tammy Jo Hose, a minor, et al. v. Chester P. Hake, John R. Taylor, W. Arthur Stokes et al. Judgment in favor of plaintiffs, Thomas Hose, individually, and Thomas Hose, as father and natural guardian, affirmed; judgment in favor of Gloria Hose reversed.

COUNSEL

Victor Dell'Alba, for appellants.

Robert J. Stewart, with him Liverant & Stewart, for Chester P. Hake, appellee.

Frank B. Boyle, for John R. Taylor, appellee.

Robert W. Morton, for W. Arthur Stokes, appellee.

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

Author: Eagen

[ 412 Pa. Page 11]

OPINION BY MR. JUSTICE EAGEN

This is a personal injury action arising out of an automobile collision. The limited issue raised on appeal is whether or not the lower court abused its discretion in refusing the plaintiffs' motion for a new trial on the ground that the verdict was inadequate.

The accident occurred about 4:45 p.m. o'clock on January 21, 1960, a clear dry day, on the LongstownFreysville Road in York Township, York County, Pennsylvania. This road is a two-lane macadam improved roadway approximately 16 feet in width. At the time, the wife plaintiff, Gloria Hose, was operating an automobile owned by her husband, the plaintiff, Thomas Hose, downhill in a northerly direction, when it collided with an automobile traveling in the opposite (southerly) direction, operated by the defendant, Chester Hake, and owned by Calderwood Brothers. The plaintiff, Tammy Jo Hose, two years old, was a passenger in the automobile operated by her mother.

[ 412 Pa. Page 12]

Shortly before the collision and before the Hose and Hake automobiles arrived at the accident site, a pickup truck operated by John R. Taylor traveling in a southerly direction on the same highway became mechanically disabled. At the time, the pickup truck was going up an incline, but when it failed to function, Taylor backed it down the hill to a more level portion of the highway. His testimony, corroborated by disinterested witnesses, was that the truck was then parked completely off the improved portion of the highway. However, there was other testimony that it was parked partly on and partly off the highway. A tow truck was summoned to give aid and upon arrival at the scene, the driver, Arthur Stokes, proceeded to back up the tow truck against the rear of the Taylor vehicle for the purpose of connecting and towing it away. The tow truck had a red blinker light on top in operation at the time. It was at or about this moment that the Hose and Hake automobiles arrived in the vicinity, and the collision occurred about 50-75 feet south of where the Taylor vehicle was parked.

The testimony of all witnesses established that Hake's automobile crossed over the center of the highway, and struck the Hose automobile when it was completely on its own right-hand side of the highway. There was also testimony that immediately prior to the accident Hake's automobile was traveling seventy miles an hour and caused skid marks on the road extending for a distance of approximately 125 feet. Hake testified that he did not know exactly how fast he was traveling at the time involved but "assumed I wasn't exceeding any speed limit." He further said that the tow truck was stopped in the middle of his lane of traffic and partially blocked his view of ...


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