Appeal from order of Court of Common Pleas of Beaver County, No. 758 of 1967, in case of William J. Reese, a minor, by his guardian and next friend, William R. Reese and William R. Reese, individually v. Darlene Mahoney Hughes and John A. Roethlisberger.
Robert C. Reed, with him Wallover, Barrickman, Reed & Steff, for appellants.
Oran W. Panner, with him Panner, Holland and Autenreith, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J.
[ 223 Pa. Super. Page 313]
This action in trespass is based on a collision, August 28, 1965, between a motorcycle operated by additional defendant John A. Roethlisberger, on which appellee William J. Reese was a passenger, and an automobile operated by appellant Darlene Mahoney Hughes, the original defendant below. Appellee commenced suit in the Court of Common Pleas of Beaver County, by summons, on July 25, 1967, and filed his complaint on December 16, 1968. On February 10, 1969, appellant joined the additional defendant. Following a four-day trial, a jury returned a verdict finding for appellant and further finding that the additional defendant alone was negligent in causing appellee's injuries. The trial court molded the verdict in favor of both appellant and the additional defendant since the latter had not been joined until after the statute of limitations had run on appellee's cause of action. A court en banc granted appellee's motion for a new trial, from which order appellant appeals.
The facts leading up to the accident, as established by appellant's testimony at trial are as follows: Appellant is a nurse. She stopped her automobile in the northbound lane of a two lane, 20 foot wide highway, preparing to make a left-hand turn (as indicated by her turn signal) across the southbound lane into the driveway of a patient. Another car stopped behind her. As appellant looked ahead she could see 290 feet
[ 223 Pa. Super. Page 314]
of the roadway to the top of a hill in the road. She waited in this position until an approaching car passed and then not seeing or hearing anything else approaching (R. 268a) turned into the driveway. As she made the turn, she slowed down because of a hump where the paving and the shoulder of the road met. (R. 268a-269a). When her car was partially off the highway, appellant heard the motorcycle operated by the additional defendant, on which appellee was a passenger. Quickly looking up the hill in the direction of the noise, she observed the motorcycle descending the hill towards her. (R. 269a). She attempted to accelerate to get off of the highway completely, but before she could do so the motorcycle sped down the hill, striking the rear of her car. The accident resulted in the appellee being thrown from the motorcycle, causing his injuries.
The version of the facts presented by appellee's testimony differs in several crucial respects, as follows: The motorcycle was descending the hill traveling at 25 m.p.h., and was only 20 to 30 feet from appellant, when she suddenly made the left-hand turn, stopping in the cycle's path and causing the accident. (R. 139a-140a). Contrary to appellant's testimony that she had already entered the driveway (R. 270a), the appellee testified that at impact the front of her car remained on the shoulder of the roadway.*fn1 (R. 168a-169a). Appellee also introduced expert testimony showing that from where appellant was stopped prior to turning, while
[ 223 Pa. Super. Page 315]
the motorcycle would only have been visible for 290 feet (to the top of the hill), the head of its operator would be visible for approximately 200 additional feet. (R. 117a-122a). Appellee argued, in the alternative, that even if his testimony that appellant suddenly turned in front of the cycle was not found credible, she still should have seen the motorcycle before turning ...