Appeals from judgments of Court of Common Pleas of Bucks County, Jan. T., 1970, No. 115, and March T., 1970, No. 553, in cases of Howard William Westerman v. Helen P. Stout and United Aircraft, Norden Division, and Seth Stout and Helen P. Stout v. Howard W. Westerman and United Aircraft, Norden Division.
Frank N. Gallagher, with him Eastburn and Gray, for appellant at Nos. 855 and 856.
Victor S. Jaczun, with him Donald B. Smith, for appellants at Nos. 857 and 858.
David F. Binder, with him Raynes, McCarty and Binder, for appellee at Nos. 855 and 857.
Samuel B. Moyer, with him Power, Bowen & Valimont, for appellee at Nos. 856 and 858.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring and Dissenting Opinion by Cercone, J. Hoffman, J., joins in this concurring and dissenting opinion.
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These appeals arise from jury verdicts for Howard Westerman against Helen Stout and United Aircraft jointly, and for Seth Stout against United Aircraft solely. We find no merit in these appeals and will, therefore, affirm the judgments of the lower court. Helen Stout and United Aircraft appeal the judgment entered against them in favor of Howard Westerman at No. 855 and No. 857 October Term, 1974, and Seth and Helen Stout appeal the denial of a new trial at No. 858 October Term, 1974. United Aircraft appeals the judgment against them in favor of Seth Stout at No. 856 October Term, 1974.
At 2:00 a.m. on November 17, 1968, Helen and Seth Stout were traveling west on the Pennsylvania Turnpike. Although the road surface was wet from rain which had fallen during the evening, the highway had been free of fog. Mrs. Stout was driving at a speed of
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approximately 45 m.p.h. when the car suddenly encountered a dense fog bank which was so severe as to reduce visibility virtually to zero. Mrs. Stout immediately jammed on her brakes causing the car to slide on the wet pavement. The car came to a halt across both westbound lanes of the turnpike, facing at a ninety-degree angle to the oncoming traffic. The car engine had stalled. Mr. Stout testified he immediately told his wife to move the car from this precarious position, but before she could comply, Mr. Westerman, driving a Volkswagen, collided with the left-front section of the Stout car. Westerman testified he had been traveling at approximately 60 m.p.h. when he encountered a light mist. He stopped accelerating when he was suddenly engulfed in the thick fog. He claimed he saw the Stouts' car just before impact but had no time to avoid the collision. All three persons were injured.
A State Policeman arrived at the scene several minutes after the accident. The turnpike is cut through a hill at this point and both Mr. Stout and the officer noticed that the fog appeared to be emanating from a cooling tower located on the higher ground approximately sixty (60) feet above the road surface and sixty (60) feet away from the shoulder of the road. It was later established that the tower was owned by defendant, United Aircraft. The fog was still rolling down onto the turnpike when the policeman returned to the scene at 6:30 a.m. that same day.
United Aircraft completed construction on the tower in 1967. The tower was to be used as part of the air conditioning system servicing their plant complex. Although the testimony indicated that the tower could have been built almost anywhere on the 32 acre tract owned by United Aircraft, it had in fact been built on that portion of land that immediately abutted the turnpike. Expert testimony further established that the
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tower was originally designed to be operated only during the spring and summer, but its year-round operation was subsequently necessary. The testimony also indisputably established that during periods of low ...