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MCELHINNY v. ILIFF (01/09/70)

decided: January 9, 1970.

MCELHINNY
v.
ILIFF, APPELLANT



Appeals from judgments of Court of Common Pleas of Mercer County, Sept. T., 1967, Nos. 56 and 277, in cases of Vincent McElhinny et al. v. Dorothy Iliff, and Francis McElhinny v. Dorothy Iliff et al.

COUNSEL

Cyril T. Garvey, with him Evans and Garvey, for defendant, appellant.

Francis J. Fornelli, with him P. R. Bartholomew, and Cusick, Madden, Joyce & McKay, for plaintiffs, appellees.

James A. Stranahan, III, with him Stranahan & Stranahan, for additional defendant, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Roberts concurs in the result on the ground that the trial Court erred in not leaving the issue of defendant's negligence to the jury.

Author: Bell

[ 436 Pa. Page 507]

Defendant Dorothy Iliff appeals from two verdicts against her in a trespass action resulting from an automobile collision with the car driven by appellee Vincent McElhinny, in which appellee Francis McElhinny was a passenger. The accident took place on Route 18,

[ 436 Pa. Page 508]

    a paved two-lane highway running north and south, at a place south of the Borough of Greenville, Pennsylvania. The accident happened at approximately 9:00 P.M. The weather was cold and clear, the surface of the road was slippery, icy and slushy. The McElhinnys were returning from a hunting trip, proceeding south on Route 18. They intended to turn left into a lane but had apparently stopped, to wait until a north-bound car had passed them in the opposite lane. It is a matter of some dispute whether or not their brake and turnsignals were on. Defendant's car was also proceeding southward on Route 18, some distance behind the McElhinny car. Defendant's car struck the rear end of the McElhinny car, causing substantial damage to both cars and injuring both Francis and Vincent McElhinny.

The McElhinnys filed suit against the defendant. Defendant obtained a severance of the plaintiffs' claims and filed a complaint joining Vincent McElhinny (the driver of the McElhinny car) as an additional defendant in the action brought by Francis McElhinny (the passenger in the McElhinny car), alleging that the collision was due to the negligence of Vincent McElhinny in stopping without lights, without turnsignals, and failing to keep a proper watch on traffic approaching from the rear.

At the close of the trial, the lower Court instructed the jury that the defendant was negligent as a matter of law for failing to maintain the statutory assured clear distance ahead. The Court further instructed the jury that whether (the driver) Vincent failed to give a signal of his intention to turn (as required by The Vehicle Code, namely, the Act of April 29, 1959, P. L. 58, § 1012, 75 P.S. § 1012) was immaterial, but that if Vincent failed to have his tail-lights on, and if that was a proximate cause of the accident, then they could find him contributorily negligent and deny him any recovery from the defendant, Mrs. Iliff.

[ 436 Pa. Page 509]

The jury returned verdicts of $18,000 for Vincent (the driver) against the defendant (Mrs. Iliff) and $15,000 for Francis (the passenger) against the defendant (Mrs. Iliff) alone. Motions for a new trial ...


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