Appeals from orders of Court of Common Pleas of Allegheny County, Jan. T., 1960, No. 3659, and Jan. T., 1961, No. 293, in cases of Helen L. Harger v. Robert A. Caputo and John E. Clarke, Jr.; Pittsburgh National Bank, administrator of estate of Florence C. MacDonald, deceased, v. Robert A. Caputo, Joseph F. Caputo and John E. Clarke, Jr.
Kim Darragh, with him Meyer, Darragh, Buckler, Bebenek & Eck, for defendant.
Harold Gondelman, with him Herbert Jacobson, and Jacobson & Gondelman, for additional defendant.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell and Mr. Justice Roberts concur in the result.
These two appeals arise from the same case. Florence C. MacDonald (decedent), Helen Harger (passenger), and decedent's brother, John F. Clarke, Jr., were riding in decedent's automobile, the brother driving the
decedent's car as her agent. They were involved in a collision with a car driven by Robert Caputo, which collision resulted in decedent's fatal injuries. Decedent's estate and passenger sued Caputo and Caputo impleaded Clarke as an additional defendant. These actions were settled immediately before trial and Caputo was directed to proceed in the same action against Clarke as a joint tortfeasor for contribution.
At this trial, which was on the issue of liability alone, Caputo argued that Clarke had his high beams on and that the lights from Clarke's car blinded him. The evidence indicated that Caputo was on a familiar road, that he dozed off, drifted to the left, awakened and attempted to pull to the right and, in doing so, hit Clarke's automobile. Statements made by Caputo after the accident tended to support this inference, for it was testified that he twice said: "I must have fallen asleep." Additionally, the evidence showed that Caputo had been awake for a period of twenty hours prior to the accident and had worked a full day within that period. Further, on examination at the trial, Caputo's chronological recollection of the day of the accident was very weak, and there were numerous other inconsistencies in his testimony. The jury, however, found that the additional defendant was contributorily negligent. On motion by the additional defendant, the trial judge granted a new trial, but refused a request for judgment non obstante veredicto. Cross-appeals were taken from these rulings.
With regard to the new trial, appellant Caputo raises two questions: (1) was there error in the grant of a new trial, and (2) on the issue of contribution in a "last ditch conciliation" is there a presumption of reasonableness in the amount of the settlement.
With regard to the judgment n.o.v., appellant Clarke also raises two issues: (3) Caputo had a defense of contributory negligence against decedent by way of
agency, so in settling he was a volunteer to whom there is no duty to make contribution and (4) Caputo's evidence negatived his negligence and, if believed, also ...