Appeals from order of Court of Common Pleas of Crawford County, Nov. T., 1960, Nos. 75, 76 and 77, in cases of June A. Burchard, administratrix of estate of Richard Alton Burchard, deceased, v. Harold W. Seber, Duane Troyer and Michael Bailey; Donald Beuchat v. Same; and Charles J. Roae v. Same.
Stuart A. Culbertson, with him Paul E. Allen, for appellant.
Fred C. Kiebort, with him F. Joseph Thomas, and Humes & Kiebort, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts, with whom Mr. Chief Justice Bell and Mr. Justice Jones join, dissents and would reverse the grant of the limited new trial.
Richard A. Burchard, Donald Beuchat and Charles J. Roae, on October 30, 1959, were passengers in an automobile owned and being operated by Harold W. Seber. While Seber was driving east on Route 27, between 7:30 and 8:00 a.m., he came into collision with a truck owned by Duane Troyer and operated by Michael Bailey. The truck had suffered engine trouble and was parked partially on the highway in Seber's lane of travel.
As a result of the collision, Burchard was killed and Beuchat and Roae were injured. Burchard's administratrix and Beuchat brought actions of trespass against Seber, Troyer and Bailey, and Roae brought an action of trespass against Troyer and Bailey, who joined Seber as an additional defendant. The cases were consolidated for trial and resulted in jury verdicts for Burchard's administratrix, under the Wrongful Death and Survival Acts, and for Beuchat and Roae, against Troyer and Bailey only, Seber being exonerated of liability by the jury.
Troyer and Bailey moved for judgments n.o.v. and for new trials, and the plaintiffs moved for new trials as to Seber. Subsequently, Troyer's insurance carrier paid the verdicts, up to the limit of its coverage, leaving a portion of the verdicts unpaid. Troyer and Bailey were then in the position of pursuing their new trial motions in order to try to salvage contribution from Seber, and the plaintiffs were in the position of pursuing their new trial motions in order to collect that portion of their verdicts not accounted for by the
payment made by Troyer's carrier. The court below held that the verdict exonerating Seber was contrary to the evidence and ordered new trials limited to the issue of the negligence of Seber; these appeals followed.
There is no significant dispute as to the facts of the case, they being well summarized in the opinion of the court below, as follows: ". . . the defendant Michael Bailey was operating a tractor trailer loaded with lumber in an easterly direction on Route 27 which is the main highway between Meadville and Titusville in Crawford County. The highway is concrete covered with asphalt, but only sixteen feet wide according to the State Policeman who investigated the accident.
"While Mr. Bailey was so proceeding he came around a sharp curve to the right and then proceeded up a long, fairly steep grade known as the Chapmanville Hill. According to the state policeman, there is a straight stretch up the grade 1000 feet in length before the road again curves to the left. As Mr. Bailey proceeded up the hill, the motor of his tractor began sputtering and finally stopped. He tried to get it started again but it wouldn't start, so he left the outfit drift backward and off on the berm as far as he could get and stopped again. Witnesses differed as to how far up the hill this equipment was when it stopped; the state policeman estimated the distance at 850 feet while several other witnesses including the defendant Seber said it was 500 to 600 feet, but no one testified that it was less than 500 feet. Witnesses also differed as to how much of the tractor trailer extended onto the hard surfaced portion of the road. The state policeman said two feet and five ...