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DUGAN v. NIGLIO (11/11/69)

decided: November 11, 1969.

DUGAN, APPELLANT,
v.
NIGLIO, APPELLANT



Appeals from order and judgment of Court of Common Pleas of Allegheny County, Jan. T., 1962, No. 1767, in case of George Dugan v. Anthony J. Niglio et al.

COUNSEL

James A. Ashton, with him Ashton & Stitt, for plaintiff.

Donald W. Bebenek, with him Frank M. Van Ameringen, and Meyer, Darragh, Buckler, Bebenek & Eck, for defendant.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 436 Pa. Page 24]

George Dugan, plaintiff below, brought an action of trespass against defendants Anthony Niglio, Electric Welding Company, and Fort Pitt Bridge Works. Dugan claimed damages for injuries allegedly sustained by him due to the negligent operation of a flatbed truck owned and operated by defendant Niglio. At trial, plaintiff consented to a voluntary non-suit in favor of defendant Fort Pitt Bridge Works, and the court entered a compulsory non-suit in favor of defendant Electric Welding Company. Following a week of trial, the jury returned a verdict slip which contained a finding that both parties were "guilty of negligence". The court molded this to a verdict for the defendant. Plaintiff filed motions for a new trial and for judgment n.o.v. against Niglio, and to remove the non-suit entered in favor of Electric Welding Company. The court below denied the motion to remove the non-suit in favor of Electric and that for judgment n.o.v. against Niglio, but granted plaintiff's motion for a new trial against Niglio. Defendant Niglio is here appealing the grant of the new trial, while plaintiff Dugan has appealed the refusal to remove the non-suit entered in favor of Electric.

The facts leading up to the institution of this law-suit are set forth in the opinion of the court below:

"On November 6, 1959, Anthony Niglio was driving his Dodge flatbed truck loaded with seven or eight thousand pounds of steel reinforcing bars and wire

[ 436 Pa. Page 25]

    mesh along Route 519 in the direction of Bridgeville. He had just entered Allegheny County when he realized that he had forgotten a bill of lading at the Electric Welding Company back in Canonsburg. There were no intersecting roads in the immediate vicinity so Niglio decided to turn around by backing his truck into a driveway which abutted the road. Niglio pulled his truck just beyond the driveway into which he intended to back by the truck's length and came to a stop. When the truck slowed and stopped, the plaintiff slowed down and brought his Chevrolet automobile to a stop five or six feet behind Niglio's truck. At this point, Route 519 is two lanes wide.

"The plaintiff testified that he came to a complete stop because he thought something had happened up ahead of him and he waited for the truck to move so that he could continue on in his direction. Niglio's truck completely blocked plaintiff's view. Niglio testified that he had a mirror on each side of his truck, but that they gave him no vision for twenty feet directly to the rear of the truck and he could not see the plaintiff's car behind him, because the wire mesh piled three to four feet high on the truck, by Niglio's own admission, completely obscured all vision through the rear window of the truck. By his own admission, Niglio made no attempt to ascertain whether or not it was safe for him to back up either by attempting to open the door and look or to otherwise determine the safety of a backward maneuver. Defendant admitted that he took no precaution to ascertain whether or not anyone was behind him and as he proceeded back the truck rammed into plaintiff's vehicle. Niglio testified that he first became aware that he had struck someone behind him when he heard a shatter of glass."

Niglio contends that the court below erred in granting a new trial. At various ...


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