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BERKEIHISER v. DIBARTOLOMEO (01/07/64)

January 7, 1964

BERKEIHISER
v.
DIBARTOLOMEO, APPELLANT.



Appeal, No. 161, Jan. T., 1963, from order of Court of Common Pleas of Chester County, Oct. T., 1961, No. 59, in case of Dorothy C. Berkeihiser v. Louis DiBartolomeo. Order, as modified, affirmed.

COUNSEL

G. Clinton Fogwell, Jr., with him Melva L. Mueller, and Relly and Fogwell, for appellant.

Richard Reifsnyder, with him MacElree, Platt, Marone & Harvey, for appellee.

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

Author: O'brien

[ 413 Pa. Page 159]

OPINION BY MR. JUSTICE O'BRIEN

This appeal arises out of a collision of two automobiles going in opposite directions on a narrow rural road. Appellee was operating her automobile, with her mother a passenger, southbound on Route 841, about a mile north of West Grove, Chester County. Appellant was driving alone, northbound. It was early in the afternoon of February 18, 1961. There was a thick fog at the time of the collision which interfered with the visibility of both drivers. Both cars were proceeding with their headlights burning. On the west side of the highway, to the right of appellee's car, there

[ 413 Pa. Page 160]

    existed a snow bank about the height of her car and extending onto the paved portion of the roadway about eight inches. There was snow on the east side of the highway but it did not extend onto the paved portion of the highway, nor did it cover the berm to the extent of preventing vehicles from using the berm. The automobiles collided, injuring the appellee and immediately killing her mother. Both drivers were injured, the appellee more so than the appellant. Both cars were totally destroyed.

The jury awarded plaintiff-appellee the amount of $38,920.64. The defendant-appellant filed motions for judgment n.o.v. and for a new trial. The court denied the motion for judgment n.o.v. and denied the motion for new trial on the issue of liability, granting the new trial confined to the issue of the amount due the appellee by reason of the appellant's negligence. This appeal followed.

Appellant contends there was insufficient evidence, as a matter of law, to establish his negligence. The record discloses a conflict in the evidence presented. The appellee presented testimony to indicate that the appellant drover his car into appellee on her side of the road, while she was as near as possible to the snow bank on her right. She testified that she was stopped, or just about stopped, at the time of the collision, when she saw the other car coming toward her. The appellant presented evidence to show that his car was off the highway, on the east side, on the berm at the time of the collision, and that the appellee was on her wrong side of the road. The highway was a black top road about fourteen and a half feet wide. There was one witness to the collision who was operating her automobile southbound following the appellee. The testimony of the parties was in conflict to the extent that each called this witness to corroborate the litigant's version of how the collision occurred.

[ 413 Pa. Page 161]

In considering a motion for judgment n.o.v., the evidence together with all reasonable inferences therefrom, are considered in the light most favorable to the verdict winner. Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963); Ischo v. Bailey, 403 Pa. 281, 169 A.2d 38 (1961); Staszak v. Seibel, 401 Pa. 494, 165 A.2d 1 (1960). Viewing the evidence in this light, the court below properly refused the motion for ...


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