decided: May 24, 1967.
C. A. B. Y. TRANSPORTATION COMPANY, APPELLANT
Appeals from order of Court of Common Pleas of Erie County, Feb. T., 1966, No. 278, and Sept. T., 1965, No. 54, in cases of John Slawson, a minor, through his mother, parent and natural guardian and guardian ad litem, M. Michalejko v. C. A. B. Y. Transportation Company and Poplar White Truck, Inc.; and Donald V. Dranzek and Eileen A. Dranzek, his wife, individually and as guardians ad litem of Diane V. Dranzek, a minor v. John Slawson and C. A. B. Y. Transportation Company and Carl Mayr, doing business as Poplar Auto Parts, now by amendment Poplar White Truck, Inc.
John G. Gent, with him James D. McDonald, Jr., and Curtze, Gent & McCullough, for appellant.
Bernard F. Quinn, with him Quinn, Leemhuis, Plate & Buseck, for appellee.
Thomas E. Doyle, for appellees.
Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Mr. Justice Roberts and Mr. Justice O'Brien concur in the result. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice Eagen join in this dissenting opinion.
Author: Per Curiam
[ 425 Pa. Page 491]
There is no reason for a lengthy opinion in this case. The facts are not complicated, nor is the applicable law in any area of controversy. John Slawson was driving his car in a proper manner at night when an unknown car, moving on its wrong side of the road, cut sharply in front of him, compelling Slawson to swerve to his right, where he collided with an unlighted trailer, assertedly illegally parked. Slawson was injured, as was also his passenger Diane V. Dranzek.
The jury returned verdicts in favor of the plaintiffs. The owner of the trailer urges judgment n.o.v. or a new trial. The opinion of the lower court covers all points raised by the appellant and is incorporated, by reference, into the opinion of this Court. The record fully supports the findings of the jury and the conclusions of the trial court that the negligent parking of the tractor was the proximate cause of the accident, that Slawson was not guilty of contributory negligence as a matter of law, that the trial judge's charge was adequate and appropriately explanatory of the fact situation and the relevant law, and that the weight of the evidence fully supported the verdicts.
Dissenting Opinion by Mr. Justice Jones:
[ 425 Pa. Page 492]
My examination of the instant record indicates that, even though it be assumed that the C. A. B. Y. Transportation Company was negligent in its failure to have its trailer lighted while parked, such negligence was not the proximate cause of the accident. See: Clark v. Morrison, 406 Pa. 130, 177 A.2d 96 (1962); Kline v. Page 492} Moyer and Albert, 325 Pa. 357, 191 A. 43 (1937). Furthermore, it is clear from the evidence that an intervening cause relieved defendant from liability even if it were guilty of negligence. In the absence of any evidence to prove that the proximate cause of this accident was the negligence of the C. A. B. Y. Transportation Company, I would enter judgment n.o.v.
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