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LABORDA v. MARKEL ET AL. (04/23/69)

decided: April 23, 1969.

LABORDA
v.
MARKEL ET AL., APPELLANTS



Appeals from judgments of Court of Common Pleas of Westmoreland County, Jan. T., 1964, Nos. 368 and 369, in cases of Guillermina Laborda, administratrix of estate of Jose Ramon Morales, deceased, v. Alfred W. Roby et al.; and Thomas Starkweather, administrator of estate of Frank Trun, deceased, v. Same.

COUNSEL

B. Earnest Long, with him Robinson, Fisher & Long, for appellants.

Christ C. Walthour, Jr., with him Kunkel, Walthour and Garland, for defendant, Roby, appellee.

Charles H. Loughran, with him Loughran & Loughran, for plaintiffs, appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice Jones and Mr. Justice Cohen join in this dissenting opinion.

Author: O'brien

[ 434 Pa. Page 185]

One Alfred W. Roby arranged to have Interstate Auto Shippers, Inc. transport his 1961 Volkswagen Sedan from New York to Gahanna, Ohio, his place of residence. Interstate then arranged to have the delivery made by Frank J. Trun under written contract with Trun whereby Trun was to make delivery as an independent contractor.

While the Volkswagen was being driven in North Huntingdon Township, Pennsylvania, on the Pennsylvania Turnpike, on February 20, 1963, a collision occurred between it and a tractor-trailer operated by Elwood E. Markel. Markel owned the 1957 Mack tractor and Kuhn Transportation Company, Inc. owned the trailer.

[ 434 Pa. Page 186]

At the time of the collision the Volkswagen was being driven by one Cornelius Jones with Trun and Jose Ramon Morales as passengers therein. Trun and Morales were killed. Their administrators thereupon instituted suit against Cornelius Jones, the driver of the Volkswagen, and against Alfred W. Roby, owner of the Volkswagen, Elwood E. Markel, owner and operator of the tractor, and Kuhn Transportation Company, Inc., owner of the trailer. A default judgment as to liability was entered against Jones for failure to file an answer or appearance. After trial, the jury returned verdicts in favor of the Estate of Jose Ramon Morales in the amounts of $17,403.65 in the Wrongful Death Action and $6,000.00 in the Survival Action and in favor of the Estate of Frank Trun in the amounts of $22,980.34 in the Wrongful Death Action and $6,000.00 in the Survival Action. The verdicts were against all the defendants except Alfred W. Roby, owner of the Volkswagen.

Markel and Kuhn Transportation Company, Inc. filed motions for new trial and for judgment n.o.v. which were refused by the court en banc. These appeals followed the entry of judgments on the verdicts of the jury.

Appellants Markel and Kuhn claim that their motions for judgment n.o.v. should have been granted since the evidence was not legally sufficient to establish that Markel was guilty of negligence which was the proximate cause of the deaths. The evidence discloses that the Turnpike was snow and ice covered at the time and place of the accident. The Volkswagen and the tractor-trailer were both proceeding westbound on the Turnpike. The Volkswagen passed the tractor-trailer at the brow of a hill and both ...


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