Appeal from order of Court of Common Pleas of Delaware County, March T., 1963, No. 3566, in case of Paul E. Salomone v. Ford Motor Company.
Robert B. Surrick, with him Cramp and D'Iorio, for appellant.
Ernest L. Green, Jr., with him Robert W. Beatty, and Butler, Beatty, Greer & Johnson, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissent.
[ 211 Pa. Super. Page 250]
Dissenting Opinion by Hoffman, J.:
Plaintiff ordered a new 1962 Ford Fairlane automobile from a local dealer, and took delivery on June 12, 1962. On June 19, 1962, a clear, dry day, at about 10:00 a.m., plaintiff was operating the car in Delaware County. At that time, the car had been driven only 147 miles and had never been serviced or repaired. Plaintiff had been the only driver of the vehicle and had noticed no previous difficulty with it. As plaintiff approached a curve at a speed of approximately 25 miles per hour, he removed his foot from the gas pedal in order to apply the brakes. Instead of returning to its normal position, however, the gas pedal remained depressed and caused the engine to race. Plaintiff reached for the pedal with his hand in an attempt to return it to its normal position. At that time he lost control of the car and crashed into a telephone pole. As a result of the collision plaintiff's automobile was completely demolished.
At the conclusion of plaintiff's evidence, the lower court granted defendant's motion for a compulsory non-suit. Plaintiff's motion to remove the non-suit was dismissed and this appeal followed.
Defendant contends that plaintiff has not met his burden of proof as set forth in Moyer v. Ford Motor Co., 205 Pa. Superior Ct. 384, 209 A.2d 43 (1965). Although I spoke for the majority in Moyer and still fully concur in its result, I find that it is inapposite here. In Moyer, we had to determine whether plaintiff's evidence was sufficient to support a verdict. Here, the sole question is whether plaintiff has made out a ...