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TARTER v. SOUDERTON MOTOR CO.

August 29, 1966

Theodore TARTER, Administrator of the Estate of Elmer John Hoffman, Deceased
v.
SOUDERTON MOTOR CO., Inc., and George K, Maginniss, t/a Maginniss Foreign Car Sales



The opinion of the court was delivered by: KRAFT

 On the morning of May 31, 1960, shortly after 8:30 a.m., the decedent, Elmer John Hoffman, was operating his Gogomobile automobile on Edgehill Road, Abington Township, Pennsylvania, when the left rear wheel separated from the vehicle, causing it to veer from its course and strike a pole. The decedent was unconscious from the moment of the impact until he died, later that same day, from the consequent injuries.

 The plaintiff-administrator sued the dealer, Souderton Motor Company, Inc. (Souderton), which sold the car to the decedent, and George K. Maginniss t/a Maginniss Foreign Car Sales (Maginniss), who serviced the vehicle shortly before the accident. Plaintiff claimed Souderton was negligent in selling to the decedent a vehicle which plaintiff alleged was defective and unsafe in design and manufacture. Plaintiff also claimed that Souderton breached its seller's warranty that the vehicle "was safe and fit in every respect."

 The claim against Maginniss was predicated upon his alleged failure to affix the left rear wheel to the brake drum properly to prevent its separation from the car.

 The jury found in favor of the plaintiff against Maginniss only *fn1" and awarded $70,000 in the action for wrongful death and $10,000 in the action under the survival statute.

 The law of Pennsylvania governing proof of negligence by circumstantial evidence was reexamined in Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 139, 153 A.2d 477, 480 (1959), in which the Court stated:

 
"Therefore, when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith."

 It is also the law of Pennsylvania that, "[A] plaintiff is entitled to have his case considered by the jury even though he does not show that the only reasonable inference is that defendant's negligence was the proximate cause of the accident. It is enough that he produces evidence which may properly be found by the jury to justify an inference that the defendant's negligence was the proximate cause of the accident because such evidence outweighs even though it does not exclude an inference that the defendant was not negligent or that his negligence was not the proximate cause of the accident." Lear v. Shirk's Motor Express Corp., 397 Pa. 144, 152, 152 A.2d 883, 887 (1959); Yeager v. J. R. Christ Co., Inc., et al., 364 F.2d 96 (3 Cir. 1966).

 A plaintiff is not required to prove his claim with "mathematical exactness", Cuthbert v. City of Philadelphia, 417 Pa. 610, 614, 209 A.2d 261 (1965), but the "[evidence] sufficient to warrant recovery must describe, picture or visualize what actually happened sufficiently to enable the fact-finding tribunal reasonably to conclude that the defendant was guilty of negligence and that his negligence was the proximate cause of the accident." Lescznski v. Pittsburgh Rwys. Co., 409 Pa. 102, 106, 185 A.2d 538, 539 (1962).

 The evidence in this action was sufficient to permit the jury to conclude, reasonably:

 (1) that from early spring until the date of the accident, May 31, 1960, only Maginniss' employes repaired or serviced the decedent's car; (2) on May 24, one week before the accident, the decedent's son visited the Maginniss garage and saw the left rear wheel off the Gogomobile; (3) the car was next seen in the defendant's driveway about 4:30 p.m. on Wednesday, May 25; (4) during the interim, from May 24 until the happening of the accident on May 31, the Gogomobile was operated only by decedent, who used the car once on Saturday, May 28, to drive to his place of employment in Doylestown and to return home later the same day; (5) that the left rear wheel separated from the decedent's car because it was not mounted or affixed to the brake drum in a rigidly tight3 manner.

 The cause of the separation of the wheel was established through the plaintiff's expert testimony, corroborated substantially by the opinions of both defendants' experts. The plaintiff's expert witness, Balke, testified that, even if only one of the bolts or screws was not pulled up rigidly tight, the wheel would have loosened and separated itself from the car within a distance of one to three hundred miles in the course of use of the vehicle.


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