Appeal from judgment of Court of Common Pleas of Lebanon County, June T., 1966, No. 115, in case of Arthur J. White v. Sheldon William Rosenberry and Nancy J. Keller Gering, additional defendant.
Richard A. Bausher, with him Stevens & Lee, for defendant, appellant.
Stanley W. Katz, with him Davis, Katz, Buzgon & Davis, for additional defendant, appellee.
James R. Whitman, with him Richard W. Cleckner, and Lewis, Brubaker, Whitman & Christianson, and Cleckner & Fearen, for plaintiff, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones and Mr. Justice Pomeroy concur in the result. Mr. Chief Justice Bell, Mr. Justice Cohen, and Mr. Justice Eagen dissent.
On July 31, 1964, at or about 1:15 p.m., the appellant, Sheldon William Rosenberry, was operating a tractor-trailer truck in a northwardly direction on Route 72 in Lebanon County, Pennsylvania. At the same time, appellee Nancy J. Keller, now Gering, was driving a 1959 Austin Healy sports automobile in a southwardly direction on the same highway. Mrs. Gering lost control of her sports car and sideswiped the Rosenberry truck. As a result of the impact she was thrown from her automobile onto the surface of Route 72.
Mrs. Gering's plight was witnessed by Rosenberry and by Arthur White, who had been driving his car behind Rosenberry's truck. Rosenberry immediately pulled his vehicle forward approximately one hundred feet, pulled over off the right side of the road as far as he could go, pulled on his emergency brake and engaged the brake lever on the steering column. Leaving the engine running in order to keep the pressure elevated in the braking system, he jumped out of the cab and started to race to where Mrs. Gering was lying on the road. At the same time, Arthur White pulled his car off the road a short distance south of where Mrs. Gering lay and also ran to her assistance.
White got to Mrs. Gering first. As he was bending over to talk to her, he heard a noise, looked up and saw Rosenberry's tractor-trailer four to six feet away from him rolling down the hill. Rosenberry, who was still five to ten feet from Mrs. Gering heard the truck, turned around and tried to get into the cab but was unsuccessful. Mrs. Gering was able to roll out of the path of the runaway truck; Mr. White was not. He was struck by the rear of the tractor sustaining serious bodily injuries.
White brought suit against Rosenberry for his personal injuries. Rosenberry joined Mrs. Gering as an additional defendant. At the conclusion of a five-day trial, on March 22, 1968, the jury returned a verdict against both Rosenberry and Gering in the amount of $146,723.30.
On March 26, 1968, Gering filed a motion for a new trial and for judgment n.o.v. After other proceedings, which need not concern us here, see White v. Rosenberry, 434 Pa. 115, 252 A.2d 707 (1969), Gering's motion for judgment n.o.v. was finally argued and, in an opinion dated March 23, 1970, the court granted the motion. Rosenberry, the original defendant, appealed.
The court's opinion indicated that its ruling was based on a belief that the legal effect of the negligence of appellee Gering terminated when she was lying on the highway and the appellant had pulled to a stop, and that the appellant's negligence in improperly braking his truck then constituted an intervening force which produced White's injuries. According to the court's opinion, appellant's conduct in relying on a combination of his emergency brake and his air brake to keep his truck ...