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WARD v. MCDAN DAV LEASING CORP.

March 28, 1972

Dorothy Louise WARD, Administratrix of the Estate of William Ward, Deceased
v.
McDAN DAV LEASING CORPORATION et al. DENNY LEASING COMPANY, Inc. v. McDAN DAV LEASING CORPORATION et al. James B. VIBERT v. McDAN DAV LEASING CORPORATION et al. v. CELANESE COATINGS COMPANY et al.


Knox, District Judge.


The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 INTRODUCTION: These three diversity cases all arising out of an accident which occurred on Interstate 70 in Washington County, Pennsylvania, on the evening of November 2, 1969, were consolidated for trial before the court non-jury. The court has heard the evidence and arguments of counsel, reviewed the briefs and requests of counsel for findings and conclusions and now enters the following Findings of Fact, Opinion and Conclusions of Law.

 A. FINDINGS OF FACT

 1. The accident, which is the subject matter of this suit, occurred about 10:45 P.M. on Sunday night, November 2, 1969, on Interstate Highway 70 in Somerset Township, Washington County, Pennsylvania.

 2. Interstate 70 at the place of this collision consisted of two eastbound and two westbound lanes divided by a concrete medial divider approximately one foot high and two feet wide.

 3. At the time and place of the accident, Interstate 70 was dry, the weather was clear, it was dark and there was no artificial illumination other than the lights of passing vehicles.

 4. One of the two vehicles involved in the accident was an eastbound Kenworth tractor pulling a van-type trailer, both owned by Denny Leasing Company and being operated by William Ward, the plaintiff's deceased.

 5. William Ward was pronounced dead at the Montefiore Hospital at 7:55 A.M. on November 3, 1969. His death was due to injuries sustained by him in this accident.

 6. Mr. Ward was born on December 24, 1927, was 41 years of age at the time of his death. He left surviving him his wife and Administratrix, Dorothy Louise Ward, a son Ricky, who is 11 years of age and a daughter, who is 15 years of age.

 7. The amount in controversy exceeds the sum of ten thousand dollars exclusive of interest and costs of this action.

 8. The plaintiff Dorothy Louise Ward is the duly qualified Administratrix of the Estate of her deceased husband William Ward, is a citizen of the State of Kentucky and has complied with the requirements of 20 P.S. Section 320.1101, having filed the appropriate affidavit with the Register of Wills of Allegheny County, Pennsylvania.

 9. The corporate defendant McDan Dav Leasing Corporation, herein referred to as "McDan Dav", is and was at all times herein a corporation organized under the laws of the State of New Jersey, doing business in the Commonwealth of Pennsylvania and utilizing the roads, highways and streets thereof for this purpose. Its principal place of business is in New Jersey.

 10. The defendant, David M. Tomlinson, herein referred to as "Tomlinson", is and was at all times herein a citizen of the Commonwealth of Pennsylvania.

 11. The corporate defendant, herein referred to as "Mulach Steel" is and was at all times herein a domestic corporation being a citizen of and having its principal place of business in the Commonwealth of Pennsylvania.

 12. The defendant, Tom Balistreri t/a Balistreri Haulers, herein referred to as "Balistreri", is and was at all times herein a citizen of the Commonwealth of Pennsylvania and at the time of the events in question was operating as a common carrier of property by motor vehicle pursuant to certificates granted by the Pennsylvania Public Utility Commission.

 13. The defendant Ralph Stringert, herein referred to as "Stringert", is and was at all times herein a citizen of the Commonwealth of Pennsylvania.

 14. The corporate plaintiff, Denny Leasing Company, Inc., herein "Denny Leasing", is and was at all times herein a corporation organized under the laws of the State of Kentucky and is a citizen thereof. Its principal place of business is in Kentucky.

 15. Plaintiff in Civil Action No. 71-53, James B. Vibert, herein "Vibert", was at all times involved herein a citizen and resident of Kentucky.

 16. Celanese Coatings Company, herein "Celanese", a corporation, third-party defendant and counterclaimant in Civil Action No. 71-53, was at all times involved herein a corporation of the State of Delaware with its principal place of business therein and was a citizen of Delaware.

 17. All States Service Corporation, herein "All States Service", another third-party defendant in Civil Action No. 71-53 was a Wisconsin Corporation with its principal place of business in Wisconsin and a citizen of Wisconsin.

 18. H.A.C. Farm Lines, herein "H.A.C.", also a third-party defendant in Civil Action No. 71-53, was a New Jersey Cooperative Association with its principal place of business in New Jersey and a citizen of New Jersey.

 19. The tractor and trailer being operated by William Ward as set forth in Finding No. 4 had painted on it a symbol and letters making reference to "Celanese Coatings Company, Louisville, Kentucky" and the cargo therein was owned by Celanese Coatings Company, but William Ward was being paid by All States Service, Inc.

 20. William Ward immediately before the collision was operating the tractor-trailer outfit described in Finding No. 4 in the "slow" or right hand eastbound lane of Interstate 70, and applying the presumption of due care applicable to a decedent under such circumstances, we find that he was operating in a careful and cautious manner at a reasonable rate of speed and within the speed limit of 55 miles per hour applicable at this point to vehicles of this type. He had no opportunity to avoid a collision when Tomlinson crossed into his lane and skid marks indicate he turned to the right and applied his brakes to no avail.

 21. About 100-130 feet eastwardly from the place of the accident, which is the subject matter of the suit, and for some unknown period of time prior to said accident, a piece of steel, with welded angles and painted a dark red oxide color, was lying on or near the outside westbound lane of said highway.

 22. Moments prior to the accident, which is the subject matter of the suit, Dorothy Chesnick, operating a Chrysler automobile in a westerly direction along Interstate Highway 70, did not see the aforesaid piece of steel and instead ran over it with the left wheels of the Chesnick automobile and thus both left tires of said automobile were cut and punctured and blew out.

 24. As the Chesnick automobile and the Pontiac automobile were gradually slowing down because they had been disabled when each had run over or otherwise had struck said piece of steel, a tractor-tanker, owned by the defendant McDan-Dav Leasing Corporation and operated by the defendant David M. Tomlinson which was also traveling west on Interstate 70, began to overtake the two said automobiles and the defendant Tomlinson pulled into the inside or passing westbound lane of Interstate Highway 70 in order to pass said two automobiles.

 25. Immediately prior to these occurrences defendant David M. Tomlinson was operating a truck-tractor and empty stainless steel semi-trailer both owned by defendant McDan Dav Leasing Corporation and operated on their business by Tomlinson as their employee in a westerly direction on Interstate 70 following the Chesnick car and the Pontiac.

 26. All three of the vehicles were traveling in the "slow" westbound lane of Interstate 70 at a speed of approximately 65 miles per hour. While Tomlinson claimed he was traveling at 50-55 miles per hour, we find from the testimony of Mrs. Chesnick and the other circumstances his speed was actually approximately 65 miles per hour, whereas the speed limit at this point applicable to vehicles of this type was 55 miles per hour. His headlights clearly illuminated the road 100 feet ahead of him.

 27. Insofar as Tomlinson was exceeding the legal speed limit or was not able to stop within the range of his headlights such conduct is determined not to be the proximate cause of this accident.

 28. The distance between the rear of the nearest automobile to the front of the tractor being operated by Mr. Tomlinson was approximately 400 to 500 feet. Prior to the slowing down of the Chesnick and Pontiac cars, Tomlinson had been following them at approximately the same speed and at the same distance.

 29. The defendant Tomlinson did not see the piece of steel which at this time was located on the inside westbound lane of Interstate 70 and instead the left front steering wheel of the defendant McDan-Dav Leasing Corporation's tractor-tanker ran over or otherwise struck said piece of steel and the left front tire of said vehicle was cut and punctured and the left wheel rim was bent or dented.

 30. The tractor-tanker owned by the defendant McDan-Dav Leasing Corporation and being driven by the defendant Tomlinson was not equipped with power steering. Accordingly, the forces set up by the sudden puncturing of the left front tire of said tractor-tanker caused said tractor-tanker immediately to swerve sharply to the left and become entirely uncontrollable. The said tractor-tanker, despite anything which the defendant Tomlinson could do or might have done, crossed over to its wrong side of the road and was headed for an open corn field located to the south of said Interstate 70.

 31. The piece of steel in question was 6 feet 3 inches long, 10 1/4 inches wide, 1/4 inch thick and weighed about 70 pounds. Welded to one side and projecting upwards were four angle irons 5/16 inch thick. It is in evidence as plaintiff's Exhibit 28 and bears the number S-1-J3798 through which it was traced to the defendant Mulach's plant. The piece is bent as the result of application of extreme force and one of the angle irons is badly bent. At various points, it is discolored by a dark substance said to be rubber.

 32. The piece of steel which was lying on the westbound lanes of Interstate 70 and was struck in turn by the Chesnick automobile, the Pontiac automobile and the tractor-tanker of the defendant McDan-Dav Leasing Corporation, driven by the defendant Tomlinson, because of its size, shape and color, the color of the highway surface and the darkness of the night was an unobservable, deceptive and camouflaged obstruction on Interstate 70 of a character or nature that a reasonable driver would not realize it was an obstruction and hazard to travel and highway safety until he was actually upon it and it was too late to avoid it.

 33. The tractor-tanker of the defendant McDan-Dav Leasing Corporation, driven by the defendant Tomlinson, was suddenly and uncontrollably diverted from its intended course by the said unseen and unobservable piece of steel when said vehicle unexpectedly came upon said unobservable obstructing steel.

 34. The impact with the piece of steel caused a blowout in his left front tire and after traveling some additional distance in the "fast" westbound lane, he turned into the eastbound lanes of Interstate 70 crossing the medial barrier.

 35. The tractor-trailer being operated by Mr. Tomlinson crossed the medial divider and executed a left-hand turn in a southbound direction immediately in front of the tractor-trailer being operated by the plaintiff, William Ward, causing the Ward tractor to collide with the middle of the tanker being operated by Mr. Tomlinson.

 36. The Tomlinson tractor detached from the trailer it was pulling and came to a rest below an embankment running along the southerly edge of Interstate 70.

 37. The left front tire of the Tomlinson tractor was found in a damaged condition after impact giving evidence of having been cut.

 38. Plaintiff James Vibert a co-employee of Ward at the time of the collision was asleep in a bunk in the tractor driven by decedent Ward which bunk was located behind the driver.

 39. After the impact between the Ward and Tomlinson tractor-trailers, the steel plate marked S-1-J3798 with welded angles as described in Finding 30 was found on the north berm north of the westbound lanes of Interstate 70 at a point to the east of the area where the impact occurred.

 40. The plate was fabricated by the South Hills Ornamental Iron Division of the Mulach Steel Corporation for the Gimbel's Department Store being erected in a shopping center near Lancaster, Pennsylvania, where it would have been incorporated into Stairway No. 1.

 41. On viewing the piece of steel in the courtroom during the trial, Robert Miske, an employee of Mulach Steel Corporation testified that this piece of steel is referred to as either a closure plate or facia and it appeared to him to be damaged and we find this testimony to be true.

 42. George Schaffer, also a Mulach Steel Corporation employee, testified that he saw this steel plate marked S-1-J3798 loaded onto a tractor-trailer owned by the defendant Tom Balistreri, as part of a bundle of steel items wired together and we find this testimony to be true.

 43. Mulach Steel Corporation has two operating Divisions known as Mulfab Company which fabricates structural steel and South Hills Ornamental Iron Division which fabricates ornamental iron.

 44. The Mulfab Division job number assigned to the Gimbel's project was 2702. The South Hills Ornamental Iron Division job number assigned to the Gimbel's project was J-3798.

 45. The steel plate previously referred to as S-1-J3798 was manufactured by South Hills Ornamental Iron Division of the Mulach Steel Corporation prior to November 2, 1969. After being manufactured, the steel plate was stored by the Mulach Steel Corporation and loaded on a tractor-trailer owned and being operated by or in behalf of the defendant Tom Balistreri on the Mulach premises in Bridgeville, Washington County, Pennsylvania, on Friday evening, October 31, 1969.

 46. The steel piece was loaded by Mulach employees using Mulach equipment and according to Mulach loading procedures. Items of steel bundled for shipment as described by the witness, George Shaffer, were referred to as "garbage" and "junk".

 47. All of the steel fabricated by the South Hills Ornamental Division and the Mulfab Division of Mulach Steel Company, at its Bridgeville, Pennsylvania plant for the aforesaid Gimbel's Department Store was hauled from Bridgeville to Lancaster by the defendant Tom Balistreri, trading as Balistreri Haulers, a common carrier.

 48. If banded or bundled with other small pieces of steel, Mulach employees had a duty to band or bundle the same securely and to notify Balistreri employees of the presence of this piece of steel not readily visible in a bundle so that the same could be safely secured.

 49. It was the duty of Tom Balistreri and his employees prior to leaving the Mulach Steel Company premises with a load of steel to properly and to safely secure all items loaded by Mulach Steel Corporation upon Balistreri trucks.

 50. After loading by Mulach employees, Balistreri employees checked the load and chained it down for safe transportation over the highways.

 51. When Balistreri employees would chain down a load of steel, there never was any canvas utilized to secure small items such as the piece marked S-1-J3798 that may have been on the trailer and there was no barrier at the end of the trailer to prevent items from falling off, the trailer being a flatbed.

 52. On the night of November 2, 1969, an employee of the defendant Tom Balistreri, trading as Balistreri Haulers, took possession of the aforesaid trailer, loaded, inter alia, with the piece of steel marked "S-1-J3798", and after chaining said load down began the trip of hauling said load from Bridgeville to Lancaster, taking a route which would take him and the vehicle he was driving in an easterly direction along Interstate 70 toward the New Stanton interchange of the Pennsylvania Turnpike and past the scene of the accident which is the subject matter of this suit.

 53. As the aforesaid load of steel was passing at or about the place of the accident, which is the subject matter of this suit, the piece of steel marked S-1-J3798 fell from the Balistreri trailer, on which it had been loaded and was being carried, and into the westbound lanes of Interstate 70 and the path of traffic traveling along said lanes.

 54. The aforesaid piece of steel marked S-1-J3798 fell from said trailer on which it had been loaded because it was not properly loaded or chained down.

 55. The defendant Tom Balistreri trading as Balistreri Haulers was negligent in failing to see to it that the said piece of steel marked S-1-J3798 was properly loaded and chained down so that it would not fall from said trailer and become an unobservable and deceptive obstruction to vehicles, including vehicles traveling in a westerly direction on Interstate 70.

 56. The defendant Mulach Steel Company was negligent in loading said piece of steel marked S-1-J3798 in a manner that it could fall off the trailer on which it was loaded if the employees of Tom Balistreri negligently failed to observe that it was improperly loaded and so that it could ...


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