Appeal, No. 28, Jan. T., 1964, from judgment of Court of Common Pleas of Delaware County, Sept. T., 1959, No. 864, in case of James J. Jardine v. Upper Darby Lodge No. 1973, Inc., Thomas J. Gross, George Goldsmith et al. Judgment affirmed.
Robert W. Beatty, with him Ernest L. Green, Jr., and Butler, Beatty, Greer & Johnson, for appellant.
Alexander A. DiSanti, with him Berman, Richard & Brian, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE MUSMANNO
In the early morning of October 19, 1958, Thomas J. Gross, after several hours of beer drinking, the last
bottle having been consumed in an establishment known as Upper Darby Lodge No. 1973, Inc., in Delaware County, got into his automobile, drove along Marshall Road and struck James J. Jardine, a pedestrian, injuring him seriously and killing a woman (whose case is not involved here). Immediately after the fatal crash, Gross ran out of his car shouting: "Why did I do it, why did I drink? Why did I drink and drive?"
The pedestrian James J. Jardine brought an action of trespass against the Upper Darby Lodge, charging it with unlawful negligence in that its bartender served intoxicating liquors to Gross when he was already visibly intoxicated. He also sued Gross for his direct negligence.
The Upper Darby Lodge brought in as additional defendants one George Goldsmith, charging him with having so parked his truck as to precipitate the fatal accident, and the Tri-County Veterans Home Association, Inc., charging that Gross had been served intoxicating beverages at that place. The court entered a non-suit in favor of the Tri-County Veterans Home Association and Goldsmith was absolved by the jury, so that there is no necessity to refer to those defendants again. The jury returned a verdict in the sum of $12,500 in favor of the plaintiff against Gross and the Upper Darby Lodge. The Upper Darby Lodge appealed and is the sole appellant here.
It contends that there was not sufficient evidence presented at the trial to support the finding of the jury that Gross was visibly intoxicated when he was served the last bottle of beer at the Lodge and that, in addition, it was not proved that Gross's alleged intoxication, was the proximate cause of the plaintiff's injuries.
Gross left the Lodge at 4:15 a.m., the accident occurred at 4:29 a.m., and at about 5:10 a.m. he was examined by Dr. Paul ...