UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: October 11, 1968.
HESS OIL & CHEMICAL COMPANY, INC. (DEFENDANT & THIRD PARTY PLAINTIFF), APPELLANT, V. GEORGE SCHWARTZ, (THIRD-PARTY DEFENDANT). GEORGE SCHWARTZ V. HESS OIL & CHEMICAL COMPANY, INC., APPELLANT
McLaughlin, Kalodner and Aldisert, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
A truck owned by Hess Oil & Chemical Company stalled on company premises and an attempt was made to start it by pushing it on a public street. After this proved unsuccessful, the disabled truck was left unattended and unlighted on the travelled portion of the two-lane highway; and after nightfall, no flares and reflectors were placed to warn approaching traffic.*fn1
That night Schwartz operated an automobile along this road with Stanchis as a passenger. While he was travelling within the speed limit, his headlights picked up an obstacle some 100 feet to his front and although he attempted to swerve when he discovered that the unlighted object was the stopped truck, a collision occurred in which both he and his passenger sustained injuries and damages.
After separate diversity suits were entered in the District Court by Stanchis and Schwartz against Hess, the original defendant joined Schwartz as a third party defendant in the Stanchis suit. The cases were consolidated for trial.
In the passenger's case, issues of negligence on the part of both defendants were submitted to the jury. In the driver's action, the additional question of his contributory negligence was also submitted for jury determination. The jury returned a verdict in favor of each plaintiff against Hess solely. Before us now is the appeal of Hess contending that in the driver's case, there should have been a ruling of contributory negligence as a matter of law, and that in the passenger's case, there should have been a directed verdict in favor of the original defendant-third party plaintiff against the third party defendant.
Upon a review of the record and contentions of the parties, as well as an examination of the substantive law of Pennsylvania, under which these cases were tried, we are convinced that the appeals are without merit. Accordingly, the judgments of the District Court, 292 F. Supp. 22 will be affirmed for the reasons stated in the well-reasoned opinion of Chief Judge Michael H. Sheridan.