Appeal from judgments of Court of Common Pleas of Cumberland County, Sept. T., 1961, No. 966, and Feb. T., 1963, No. 376, in cases of Thomas M. Williams v. Flemington Transportation Company, Inc., Frank Luster, Kenneth J. Fisher et al.; and Betty Sue Smith, administratrix of estate of William Richmond Smith, deceased, and as trustee ad litem, v. Same.
John M. Eakin, for appellants.
George F. Douglas, Jr., with him Faller and Douglas, for appellee.
Mark E. Garber, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this dissenting opinion.
Truck Power, Inc. and Harry Sweeney appealed from judgments entered on the verdicts after refusal of motions for new trial and for judgment n.o.v. On February 14, 1961, Kenneth J. Fisher, operating a tractor-trailer owned by Frank Luster and leased to Flemington Transportation Company, Inc., was eastbound on Route 11, about 7 and one-half miles west of Carlisle in Cumberland County. The highway at this point is macadam black top, 24 feet wide, divided by a broken white line creating two lanes of traffic each 12 feet wide. The Flemington vehicle was ascending a long grade of approximately 1900 feet, and when about 500 feet from the crest of the hill, the motor faltered, due to a malfunctioning fuel pump. The driver, Fisher, drove the vehicle to the right on to the berm, as far off the road as possible. There being a snow bank about 5 feet south of the paved portion of the road, Fisher could not get his vehicle completely off the road, and the vehicle was stopped parallel to the highway with 4 feet on the paved portion and 4 feet on the berm. It was about 7:00 o'clock in the evening when the truck stopped, and Fisher put out a lighted flare before leaving the vehicle to walk to a motel where he called Truck Power, Inc. for a service truck to come to his equipment for the purpose of getting it started. Fisher returned and found that the flare which he had set had gone out. He set another flare, with a life of about 20 minutes, and this also burned out while he was waiting for the service truck to arrive.
The service truck of Truck Power, operated by Harry Sweeney, an employee of Truck Power, arrived at the disabled vehicle shortly after 8:30 p.m. Sweeney parked his truck on the left hand side of the highway, directly in front of the Flemington tractor, and about 2 feet from it, with its lights shining on the front of the tractor. Sweeney discussed with Fisher the placing of a flare, but Fisher had none to put out, having used the two that he had. Sweeney put gas in the Flemington tractor and proceeded, with Fisher's aid, to attach cables to the battery of the Flemington tractor, the battery being under the floor boards inside the cab.
Oliver McDonald, operating a tractor-trailer for Novick Transfer, Inc., was westbound on the highway and, at about 8:40 p.m., came over the brow of the hill and approached the place in the highway where the Flemington and Truck Power vehicles were stopped on the south side of the highway. When he had progressed about half the distance from the brow of the hill to where the vehicles were stopped, he saw them. About the same time, William Richmond Smith was ascending the hill eastbound, operating a tractor-trailer owned by Thomas M. Williams and leased to Dolly Madison Bakery. McDonald, realizing that he and the oncoming vehicle would arrive at the same time at the point on the highway where the disabled vehicle and service truck were stopped, turned his headlights on and off, in an attempt to warn the driver of the eastbound vehicle, and drove his tractor-trailer as far to the right as snow piled along the side would permit. The bakery vehicle struck the left rear of the disabled Flemington tractor-trailer, tearing along the side of it and pushing it and the service truck forward. It came to a stop about even with and parallel to the Flemington tractor. The driver of the bakery tractortrailer, Smith, was thrown from the cab against the
left front of the Novick tractor and apparently bounced off the Novick tractor and under the wheels of the trailer he was operating. He was killed instantly. Sweeney called to Fisher when he saw the headlights of the bakery truck approaching and both men jumped from the cab into and over the snow bank. The disabled Flemington vehicle was a tractor with a flat bed trailer loaded with bricks, with a total weight of about 60,000 pounds.
Thomas M. Williams, the owner of the equipment, leased to Dolly Madison Bakery and operated by Smith, brought suit to recover for the damage to his property. Betty Sue Smith, the wife of William Richmond Smith, brought a survival action and an action for wrongful death. The cases were consolidated for trial. The amount of damages in the Williams case was stipulated and, in the Smith case, it was agreed that all of the damages should be consolidated in the wrongful death action. The jury returned a verdict in favor of Betty Sue Smith against the defendants, Flemington Transportation Company, Inc., Frank Luster, Kenneth J. Fisher, Truck Power, Inc., and Harry Sweeney, and a verdict in favor of the defendants, Novick Transfer, Inc., and Oliver McDonald. The jury returned a verdict in favor of Thomas M. Williams against the same defendants and in favor of Novick Transfer, Inc., and Oliver McDonald. By agreement of all of the parties in interest, the verdict against Frank Luster was set aside, and after appeal, the plaintiff, Betty Sue Smith, as trustee ad litem, with the ...