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WHITNER v. VON HINTZ (03/25/70)

decided: March 25, 1970.

WHITNER, APPELLANT,
v.
VON HINTZ



Appeals from judgments of Court of Common Pleas of Bucks County, Sept. T., 1962, No. 997, and March T., 1963, No. 277, in cases of Louis A. Whitner v. Margaret L. Von Hintz et al.; and Doris S. Evans, administratrix of estate of Gerald Evans, deceased, v. Stanley Lojeski et al.

COUNSEL

George M. Bush, with him Hartzel and Bush, for appellant.

James C. Bowen, with him Victor S. Jaczun, and Power, Bowen & Valimont, for appellee.

Norvin Nathan, for plaintiff-appellee.

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

Author: Pomeroy

[ 437 Pa. Page 451]

At approximately nine o'clock in the evening on April 9, 1962, an automobile owned and operated by Louis Whitner (appellant herein) was struck from behind by a second car driven by Stanley Lojeski. The impact occurred between the right front of the Lojeski vehicle and the left rear of the Whitner automobile. At the time of the accident, both cars were traveling south on Route 309, a three-lane highway in Bucks County. The car driven by Lojeski was owned by Margaret Von Hintz, and Gerald Evans was a passenger in the right front seat of the Lojeski automobile.

As a result of the accident, two suits in trespass were filed. Whitner filed suit against Lojeski and Von Hintz seeking damages for personal injuries, loss of earnings, and property damage. Evans brought suit against Whitner and Lojeski claiming damages for personal injuries and loss of income; following Evans' death in January, 1965, his wife, as administratrix of his estate, was substituted as plaintiff and continued to prosecute the action. The two actions were consolidated and jointly tried in the Common Pleas Court of Bucks County. In the Whitner suit, the court entered an involuntary non-suit in favor of Von Hintz upon her motion, and the jury returned a verdict against Whitner and in favor of the remaining defendant Lojeski. In the Evans suit the jury returned a verdict of $12,000 in favor of the Evans estate and against Whitner and in favor of Lojeski. Lojeski thus was relieved of liability in both cases. Both Whitner and Evans filed motions for new trial; both motions were denied after argument. The appeals now before us

[ 437 Pa. Page 452]

    were taken by Whitner from the judgments subsequently entered on the verdicts.

The issues presented by these appeals are the validity of the lower court's charge to the jury on proximate and superseding cause. Resolution of these questions requires some review of the trial testimony.

At trial, the principal parties offered accounts of the events leading up to the accident which differed markedly in many particulars. Whitner, according to his account, had hoped to visit a gun shop located on the west side of Route 309 on the evening of the accident. Uncertain whether the store was open, Whitner drove north on Route 309, passing the shop on his left across the highway. Discovering that it was still open, he drove some two-tenths of a mile further north and there pulled off the road onto the shoulder opposite a motel. He checked for traffic, noticed a car roughly one mile away coming south toward him, and realizing he had ample time, he executed a U-turn. He then drove south until he again approached the shop in question, which was now on his right. Intending to stop but uncertain as to where he should park, Whitner slowed down and eased his car off the highway. When he was almost entirely on the berm at the side of the road, and while he was still attempting to decide where he would park, Whitner's car, according to his testimony, was struck from behind; the force of the collision caused it to roll over until it came to rest against a pole in front of the gun shop. Whitner estimated that at the time of the accident his car was roughly 90% on the berm of the road, although he acknowledged that his left rear wheel might still have been on the paved highway surface.

Lojeski's version of the accident as told at trial was as follows: Immediately before the accident, he was driving south on Route 309 at a speed of 45 to 50 miles per hour. Suddenly, the Whitner vehicle, which had

[ 437 Pa. Page 453]

    been proceeding north on Route 309, executed a U-turn in front of his own car. Lojeski was not aware of the Whitner car until it passed in front of him at an angle roughly one car length away, and he was unable to avoid the collision because of the suddenness of Whitner's turn. Lojeski's version of the accident was confirmed in substance by Evans in a deposition taken before his death, parts of which were read into evidence at trial, and by Walter Gilliam, a second passenger in the Lojeski car who escaped the accident without injury, although both men's accounts differed from Lojeski's in several particulars, not of relevance here.

Given this marked conflict in testimony, the jury was obliged to assess the credibility of the witnesses and decide upon the sequence of events which it deemed authoritative; its further task was to determine the incidence of liability in accordance with the ...


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