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THOMAS v. BAIRD (04/23/69)

decided: April 23, 1969.

THOMAS, APPELLANT,
v.
BAIRD



Appeal from order of Court of Common Pleas of Somerset County, No. 1393 C. D. 1967, in case of Geraldine L. Thomas, administratrix of estate of Edward F. Thomas, deceased, v. Ronald G. Baird et al.

COUNSEL

Joseph N. Cascio, with him Fike, Cascio & Boose, for appellant.

Robert G. Rose, with him Spence, Custer, Saylor, Wolfe & Rose, for appellee.

Bell, C. J., Jones, Cohen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief justice Bell. Mr. Justice Eagen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: Bell

[ 433 Pa. Page 483]

This is an appeal from an Order of the Court of Common Pleas sustaining defendant's preliminary objections in the nature of a demurrer.

The plaintiff alleged that at about 9:30 A.M. on July 26, 1966, the defendant Ronald G. Baird was operating a maintenance truck along the Pennsylvania Turnpike. The truck was owned by Baird's employer, the Pennsylvania Turnpike Commission, and, at the time the accident occurred, Baird was acting within the scope of his employment.

The plaintiff further alleged that Baird brought his truck to a stop in the right, or slow, lane of westbound traffic, disembarked from the truck and was standing on the running board. No precautions were taken to warn traffic coming from the truck's rear.

[ 433 Pa. Page 484]

Plaintiff's decedent was operating a tractor-trailer in a westerly direction on the turnpike and, rounding a curve in the highway to his right, suddenly came upon defendant's truck. The decedent had no opportunity to stop his vehicle, and was killed in the ensuing collision.

The plaintiff, as administratrix of decedent's estate, brought this action in trespass to recover for decedent's death under the Pennsylvania statutes. The defendant Turnpike Commission then filed preliminary objections alleging that the Commission is an instrumentality of the Commonwealth engaged in a governmental function and, as such is immune from liability in trespass for injuries and damages resulting from the torts or negligence of its officers or employees. The lower Court sustained the preliminary objections.

Plaintiff acknowledges that our decision in Rader v. Pennsylvania Turnpike Commission, 407 Pa. 609, 182 A.2d 199, controls the present case and supports the Order of the lower Court, but asks us to reconsider and overrule that decision. The plaintiff in Rader was injured when his automobile skidded and collided with a guard rail; in his complaint he alleged that the defendant Turnpike Commission allowed ice to accumulate on the turnpike and negligently failed to spread ashes or other abrasive materials thereon or to post a warning of the icy condition. In Rader we held that the Pennsylvania Turnpike Commission was an instrumentality of the Commonwealth engaged in a governmental function and hence immune from liability for the negligence of its employees.

The plaintiff in the instant case does not raise any arguments or contentions which were not adequately and fully considered and rejected in Rader. Moreover, Rader has been cited with approval by our Court several ...


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