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SAMUEL SHEPARD AND MARY SIMMONS CUNNINGHAM v. MARTIN CENTURY FARMS (02/18/77)

decided: February 18, 1977.

SAMUEL SHEPARD AND MARY SIMMONS CUNNINGHAM, APPELLANTS,
v.
MARTIN CENTURY FARMS



No. 315 October Term, 1976 Appeal from an order dated October 20, 1975, of the Court of Common Pleas of Philadelphia County, C.P. 5, Trial Division, Law, at No. 5843 June Term, 1964.

COUNSEL

Benedict A. Casey, Philadelphia, for appellants.

Linda W. Cannon, Philadelphia, with her Timothy J. Mahoney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 245 Pa. Super. Page 553]

At 3:30 a. m. on February 20, 1964, plaintiff-appellant Samuel Shepard was operating his automobile in one of the two eastbound lanes of Girard Avenue in Philadelphia. Plaintiff-appellant Mary Simmons Cunningham was a passenger in his car. At the same time, Aldo Romagnoli was piloting defendant-appellee Martin Century Farms' milk truck on Girard Avenue in the same direction. A light snow had fallen, but Girard Avenue, though wet, was clear. When appellant Shepard attempted a left turn north onto Forty-first Street, the left rear of his automobile was struck by the right front of appellee's truck. There is no dispute that the impact occurred in the northeast quadrant of the intersection of Girard Avenue and Forty-first Street, after appellant started the turn.

In the resulting jury trial, which began on January 16, 1975, appellant Shepard testified that he had been travelling in the left eastbound lane of Girard Avenue. After signaling his intention to make a left turn, he stopped for a red traffic signal at the corner of Girard Avenue and Forty-first Street. When the signal changed from red to green, he began to turn, and, while turning, he was struck from behind by appellee's truck. Appellant Shepard testified that he had not seen appellant's truck

[ 245 Pa. Super. Page 554]

    until the moment of impact. At trial, appellants' theory of liability was that Mr. Romagnoli had been negligent in following appellant Shepard's car too closely. When Shepard signaled his intention to turn, Romagnoli was unable to stop and skidded into the car.

Mr. Romagnoli testified that he was driving in the left eastbound lane of Girard Avenue and that he came to a stop for a red traffic signal at Forty-second Street. Next to his truck, in the right lane, was an automobile which he subsequently learned was being driven by appellant Shepard. When the light changed to green, both vehicles began to move. The car moved slightly out in front of the truck, and as they travelled toward Forty-first Street, both vehicles held their relative positions. Mr. Romagnoli estimated the speed of each vehicle to be twenty miles per hour. At the intersection of Girard Avenue and Forty-first Street, without warning, the driver of the automobile attempted to make a left turn from the right lane. Mr. Romagnoli turned his steering wheel to the left and slammed on the brakes. However, he was unable to prevent a collision between the truck and the automobile.

The jury rendered a verdict in favor of appellee. On appeal, appellants propose several trial errors which they contend mandate a new trial. We agree with at least one of appellants' contentions and therefore order a new trial.

One of the witnesses called by appellant was Officer William Haines, who had been a member of the Accident Investigation Division of the Philadelphia Police Department. During ...


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