Appeal from order of Court of Common Pleas of Allegheny County, April T., 1966, No. 3568, in case of Glenn Austin v. Joseph P. Ridge.
John Ward Hindman, with him Prichard, Lawler & Geltz, for appellant.
Anthony J. Martin, with him Alan Papernick and Martin and Papernick, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy.
This is an appeal from an order of the lower court granting a new trial following a jury verdict in favor of the defendant. The case involved an action in trespass brought to recover damages for personal injuries resulting from a collision between an automobile operated by plaintiff-appellee and a truck owned by the Department of Highways of the Commonwealth of Pennsylvania and operated by defendant-appellant.
Appellant was employed by the Department of Highways as a temporary driver of a large dump truck on the date of the accident in question. Appellant had been operating this particular truck weighing 10,000 pounds for about a month before then, but had not previously loaded it to its capacity weight. On that day he drove the truck without difficulty from
its garage at Christy Park to a site near New Kensington where the truck was to be loaded with about 20,000 pounds of road paving materials. While on route to a job site after loading, appellant experienced no trouble or difficulty with the truck for several miles, until he began to descend Moss Side Boulevard. This stretch of highway is about two miles long and consists of a descent, a level stretch, then another down grade, and a final level area extending about a quarter mile before the intersection where the accident took place.
While on the first descent, appellant experienced some difficulty with the brakes which indicated that they were not taking hold and slowing the truck down in the normal fashion. Appellant stated, however, that he believed he would be able to stop the truck, notwithstanding this difficulty. At that time, he was operating the truck in third gear and in high differential as opposed to low differential which would have retarded the movement of the truck. Appellant testified that after he had traversed the first level area and started into the second descent, he knew that the brakes were not stopping the truck as they should have, but he remained confident that he would be able to stop should that become necessary. There were a number of areas along the road where the appellant could have pulled off, had he chosen to do so.
Appellant had previously made tentative plans to stop for coffee at a diner located at the intersection in question, if a fellow worker, who had preceded him, had stopped there. Consequently, after he had completed the second descent stage and was on the final level area before the intersection, the appellant attempted to observe the diner's parking lot, where a number of trucks were parked, in an effort to determine whether his friend had stopped. Before he looked
into the parking area, appellant had seen the appellee's car stopped at the intersection, waiting to make a left-hand turn. Having determined that his friend had not stopped at the diner, appellant looked ahead and shifted into fourth gear somewhat automatically at about the same time, causing the truck to move ahead faster. He then realized that appellee was still stopped at the intersection in front of him and applied the service brakes of the truck. The brakes slowed the truck but were inadequate to bring it to a stop. Appellant applied the emergency brake, but it too did not stop the truck. Swerving to the right in a last-minute attempt to avoid a collision, the appellant caught the right rear of appellee's automobile with the left side of his truck and propelled the car into a gasoline truck coming from the opposite direction, causing injuries to the appellee. At no time during the descent of Moss ...