Appeal from judgment of Court of Common Pleas of Blair County, June T., 1960, No. 252, in case of The D. M. Bare Paper Company v. C. E. Steward et al.
Martin Goodman, with him Alexander A. Notopoulos and Goodman & Notopoulos, for appellant.
Richard A. Carothers, with him Jubelirer & Carothers, for appellees.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J. Montgomery and Jacobs, JJ., would grant a new trial.
[ 205 Pa. Super. Page 288]
The D. M. Bare Paper Company, appellant, owner of a plant, instituted an action in trespass against Glenn McChessney, a truck driver and one of the appellees, and his employer, C. E. Steward, the other appellee, for damages sustained while the appellant's plant operations were suspended for a period of two and one-half hours. It was stipulated that the damages were $5,000.00 in amount. The plant stoppage was caused when the truck driver struck a guy wire attached to a utility pole some 500 yards from appellant's plant. The jury returned a verdict in favor of the defendants. Appellant's motions for judgment n.o.v. and for new trial were dismissed and it thereupon took this appeal.
Taking the evidence and the inferences therefrom in favor of the verdict winner, the defendants-appellees, the facts are as follows:
On August 29, 1959, at 10:45 a.m., Glenn McChessney was operating a 1953 Super White dump truck, owned by C. E. Steward, on the property of the New Enterprise Stone and Lime Company and was hauling sand and gravel from bins to a weight scale. A road
[ 205 Pa. Super. Page 289]
leading to and from the bins to the scale crossed a one-way bridge leading to the scales and other trucks had temporarily blocked passage from the bridge. McChessney, seeing that other trucks prevented passage over the bridge and desiring to drive to the bins, used a path at the side of the bridge and in so doing attempted to drive his truck between a pole and its guy wire. The right front corner of the body of the truck struck the guy wire and the power lines fell. This severed the power which was operating the machines in the plant and caused the cessation of work in the plant.
McChessney testified that he could clearly see the guy wire in front of him as he approached it and that as soon as he heard the noise which came from the scraping of the guy wire on the truck, he stopped his truck. McChessney testified that he and other drivers had used this cutoff path on numerous occasions before without accident. In fact, he said that he had used it approximately a hundred times in the previous year.
The court below refused the motion for judgment n.o.v. because it concluded that what McChessney did amounted to an "honest error in judgment rather than actionable negligence." The case of Small v. Pittsburgh Railways Co., 216 Pa. 584, 66 A. 76, is cited as authority for this proposition. That was a case in which a streetcar motorman propelled his car down a hill when the rails were covered with ice. He attempted to use the brakes, which were provided with sand, but this operation did not cause the wheels to take hold even when reversed. As a consequence the car slid down the grade and caused injury to the plaintiff at the bottom of the hill. In that ...