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ECKELS v. KLIEGER (06/17/65)

decided: June 17, 1965.

ECKELS
v.
KLIEGER, APPELLANT



Appeal from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1962B, No. 4582, in case of Marie Ann Eckels et vir v. David T. Klieger et al.

COUNSEL

Giles J. Gaca, with him Pringle, Bredin, Thomson, Rhodes & Grigsby, for appellant.

Robert N. Peirce, Jr., with him Hess, Hess & Bagley, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J.

Author: Jacobs

[ 205 Pa. Super. Page 528]

Plaintiffs, husband and wife, sued in trespass to recover damages incurred as a result of a rear-end collision involving three motor vehicles. A jury returned a verdict against defendant, Klieger, alone, in favor of both plaintiffs. Klieger has appealed from the judgment entered on the verdict by the lower court after denying his motions for judgment n.o.v. and for a new trial.

The wife plaintiff was driving her husband's station wagon on Fifth Avenue in Pittsburgh around noon on December 30, 1959, in the curb lane of the four lane street. Road conditions were dry. After she passed a traffic light by the Cathedral of Learning, she either slowed down or came to a stop because a car nine or ten car lengths ahead of her had stopped. At this point her automobile was struck in the rear. Klieger, who had made a right turn on to Fifth Avenue about 50 yards from the accident location, was driving the car

[ 205 Pa. Super. Page 529]

    that struck plaintiff's car from the rear. Defendant Oates was driving a car that hit Klieger's car from the rear. The main dispute at trial was whether Klieger hit plaintiff's station wagon before Oates hit Klieger or whether Oates' bump pushed Klieger into the rear of the station wagon. This issue was clearly one for the jury's determination. Their verdict indicates they believed Oates' version rather than Klieger's.

Appellant Klieger's arguments before this court are: (1) as a matter of law there was no evidence from which the jury could find him negligent and he is entitled to judgment n.o.v., (2) there was fundamental error in the charge entitling him to a new trial, and (3) in any event, the amount of the verdicts should be reduced by $1,500, the amount of a settlement agreed to by plaintiffs and Oates in chambers prior to the jury charge. We will treat these arguments in the order listed.

In Meek v. Allen, 162 Pa. Superior Ct. 495, this court, faced with a very similar factual situation, stated:

"'Where two persons are driving vehicles in the same direction on a city street, it is the duty of the driver of the rear one to be vigilant, and ordinarily to have his car under such control as to be able to prevent a rear-end collision (even) in the event the front vehicle suddenly stops; (cases cited).' Since the automobile which caused the damage was driven by the defendant and was exclusively under his management and control, it was a fair inference for the jury that he failed to observe the degree of care required of him by law and that he therefore was chargeable with negligence which resulted in injury to the plaintiff. The question ...


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