Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1959, No. 2917, in case of David D. Tennent, Jr. v. Gulf Oil Company et al.
Thomas L. Cooper, with him McArdle, Harrington, Feeney & McLaughlin, for appellant.
Giles J. Gaca, with him Pringle, Bredin, Thomson, Rhodes & Grigsby, for appellees.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Ervin, J.
[ 204 Pa. Super. Page 431]
This is an appeal from the refusal of the court below to grant plaintiff's motion to remove a compulsory non-suit in a trespass case.
The facts are well stated in the opinion of the court below and are as follows: "On the morning of November
[ 204 Pa. Super. Page 43228]
, 1958, plaintiff reported to his place of employment in Wilkinsburg, Pennsylvania, at 8:00 A.M. He was directed to load his Dodge truck with necessary supplies and equipment and to proceed to the job site at Terminal Way in the South Side of Pittsburgh, Pennsylvania. He followed these instructions.
"East Carson Street runs in an east-west direction. Plaintiff drove in a westerly direction on this street to Terminal Way where he arrived at about 10:00 A.M. He turned north into this thoroughfare and backed out, again turning west on East Carson Street, but now proceeding backwards. He then parked on East Carson a few feet from Terminal Way. Thus he was parked on the wrong side of the street. There were four 'picks', or vertical ladders constituting platforms for painters, on the top of the truck. These were sixteen to eighteen feet long and extended five to six feet over the rear end of the truck. One Elliott Beck, a fellow employe of plaintiff, assisted him in removing these from the vehicle. They removed three without incident. While working on the fourth, plaintiff was standing in the rear of the truck. He reached up and pulled the pick down to shoulder level. He was then suddenly struck by the pick, thrown onto the trunk of another car on East Carson and then to the ground. He testified that as he began to pull down on the last pick he saw defendant's truck strike his truck and the pick. On cross-examination, however, he stated that he did not actually see the impact between the vehicles. His testimony is as follows: 'Q. Now, I understood you to say that you saw another vehicle strike your vehicle? A. I heard the other vehicle strike my vehicle, and I saw our vehicle move, and then I felt the impact and I was injured. Q. Now, you correct me if I'm wrong, Mr. Tennent but, when Mr. Cooper was asking you questions, I understood you to say you saw your truck get hit by another vehicle. A. Well, a figure
[ 204 Pa. Super. Page 433]
of speech. I heard it, and I saw my truck move. Q. Well, let's iron out this one thing first of all. Did you see your truck get hit by another vehicle? A. I heard my truck, and I saw my truck move. Q. Did you see your truck get hit by another vehicle? A. No. Q. You did not see it get hit by another vehicle? A. I did not see the actual impact. I saw my truck move.'"
In addition to the plaintiff's testimony, Mr. Beck, foreman on the job, testified that he was standing in the rear of the truck and that he heard a "slamming" noise and that the truck rocked and knocked him down ...