Appeal from judgment of Court of Common Pleas of Berks County, March T., 1969, No. 51, in case of William Reagan and Helen Reagan, his wife v. Shirley L. Love.
George R. Eves, for appellants.
David H. Roland, with him Balmer, Mogel, Speidel & Roland, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Dissenting Opinion by Montgomery, J. Hoffman and Cercone, JJ., join in this dissenting opinion.
[ 219 Pa. Super. Page 432]
The six judges who heard this appeal being equally divided, the judgment is affirmed.
[ 219 Pa. Super. Page 433]
Dissenting Opinion by Montgomery, J.:
I respectfully dissent in this trespass case for the reason that I believe the lower court erred in submitting to the jury the issue of contributory negligence.
The plaintiffs-appellants, William and Helen Reagan, brought this action to recover damages for personal injuries allegedly sustained by Mrs. Reagan in an automobile accident which occurred on October 28, 1967, at about 2:30 a.m., in Berks County. At the time of the accident Mrs. Reagan was a passenger in the front seat of an automobile being operated by the defendant-appellee, Shirley L. Love, (quoting the facts set forth in Appellee's Counter-History of the Case in her brief on this appeal) ". . . on a two-lane eighteen foot wide blacktop road returning to their homes from a Halloween party. The road was wet and there were wet leaves on the road. Appellee was familiar with the road, had her headlights on and had no trouble negotiating the curvy road prior to the scene of the accident. There was no evidence of excessive speed. As the car came to a sharp right curve in the road, Appellant, Helen Reagan, requested Appellee to turn on the courtesy light so that she could look for her house keys and Appellee did so. Just then Appellee felt the rear of the car skid on the wet leaves. Appellee lost control and the car went off the left side of the road before the car ever got to the curve, as the result of which ...