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BAER v. HEMLINGER (11/12/63)

November 12, 1963

BAER
v.
HEMLINGER, APPELLANT.



Appeals, Nos. 115, 116, 117 and 118, March T., 1963, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1958, No. 523, in case of John L. Baer, Jr., Brian Baer, a minor by John L. Baer, Jr., his next friend, John L. Baer et al. v. Louis H. Hemlinger, Oliver Stitt, and Paul E. Rathgeb, Jr. Judgments affirmed.

COUNSEL

George M. Weis, with him Weis & Weis, for appellant.

Harold R. Schmidt, with him Rose, Houston, Cooper and Schmidt, for appellees.

Frederick N. Egler, with him Reed and Egler, for appellee.

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

Author: Musmanno

[ 412 Pa. Page 407]

OPINION BY MR. JUSTICE MUSMANNO

On the afternoon of October 24, 1957, John L. Baer, Jr. was driving his Studebaker sedan in an eastwardly direction on Route 30, east of the City of Pittsburgh. With him were his father and mother and his boy Brian. At the same time that this closely-knit group was enjoying its family spin, in complete harmony and contentment, two other motorists, Louis H. Hemlinger and Oliver Stitt, were engaged in a bitter vehicular quarrel on the same highway traveling in the opposite direction, that is westwardly. At a point about nine tenths of a mile east of the Westinghouse Bridge, Stitt's

[ 412 Pa. Page 408]

Chevrolet pickup truck and Hemlinger's Ford station wagon collided with one another slightly. It was ascertained later that the damage done to the Hemlinger station wagon amounted to a mere $40.*fn* It would appear, however, that the touching of the cars provoked in Hemlinger an anger in inverse ratio to the slightness of the damage done his vehicle and when Stitt failed to stop, Hemlinger pursued him, blowing his horn and augmenting his speed, as Stitt, aware that he was being pursued, increased his speed also.

In a demonstration more in keeping with the Indianapolis Race Track than a suburban highway, these motorists raced one another reaching speeds of 70 miles an hour and ignoring traffic signals. As they roared over the Westinghouse Bridge, Hemlinger gained enough on Stitt to read his license plate number, but this apparently did not satisfy him, so he continued the pursuit. When they both got to a point about twotenths of a mile beyond Center Street, Hemlinger put on an extra burst of speed, came abreast of his rival and then nosed ahead. Now he cut sharply into Stitt's path so as effectually to bar Stitt's passage and, to insure his being the undeclared winner of the race, Hemlinger straddled the two westbound lanes (this being a four-lane highway). By this time the racers had entered into a curve, and since Stitt was now trying to pass his speedier opponent, Hemlinger, in order to prevent that this should happen, swerved and, as another motorist who had witnessed this mad performance, testified: "The station wagon, well, more or less forced him [Stitt] into the oncoming traffic."

In this oncoming traffic was still another motorist, Paul E. Rathgeb driving a ...


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