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FRANZ SCHWARZBACH v. PERRY J. DUNN (12/28/77)

decided: December 28, 1977.

FRANZ SCHWARZBACH, PLAINTIFF,
v.
PERRY J. DUNN, DEFENDANT, V. JIM BOYLE CHEVROLET, INC. AND JEEP CORPORATION, ADDITIONAL DEFENDANTS. APPEAL OF JEEP CORPORATION. ROBERT M. GAYLOR, ADMINISTRATOR OF THE ESTATE OF GUNNAR R. GAYLOR, DECEASED, V. JEEP CORPORATION, A CORPORATION, APPELLANT



Appeal from the judgment of the Court of Common Pleas of Elk County, Pennsylvania at No. 168 April Term, 1972., Civil Action, Law. Appeal from the Order of the Court of Common Pleas, Civil Action Law of Elk County, Pennsylvania at No. 90 February Term, 1973.

COUNSEL

John M. Wolford, Erie, with him R. T. Mutzabaugh, Bradford, for appellant.

John R. Fernan, Ridgway, for appellee at No. 1972.

Norbert J. Pontzer, Ridgway, for appellee at No. 1973.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Price, J., files a concurring opinion in which Spaeth, J., joins. Cercone, J., concurs in the result. Hoffman, J., files a dissenting opinion.

Author: Watkins

[ 252 Pa. Super. Page 456]

Both of these consolidated cases arise out of the same set of circumstances and come to us on appeal from the Court of Common Pleas of Elk County, Civil Division.

On March 27, 1971, Perry J. Dunn, operating the Jeep which was involved in the accident, invited three men friends to ride with him. Dunn and his passengers left the Borough of Ridgway at approximately 8:00 p. m., travelled to other towns in the area, and then finally stopped at a place one and one-half miles south of Ridgway where they remained for a period of approximately two hours. They then proceeded in a northerly direction toward Ridgway on Route 219.

As the Jeep reached the crest of a hill, Dunn, judging his speed to be about 40-45 miles per hour, decided to slow down and attempted to apply the brakes of the vehicle when he found that the brake pedal went to the floor of the Jeep with no braking effect. Dunn then decided to cross to the opposite side of the highway in order to scrape the Jeep

[ 252 Pa. Super. Page 457]

    along the steel guardrails on that side to slow the vehicle. Before the Jeep reached the beginning of the guardrails it left the highway, went over an embankment, and collided with trees and brush. One of the passengers in the vehicle, Gunnar B. Gaylor, was fatally injured as a result of the crash. Another, Fred Schwarzbach, was severely injured. The vehicle was damaged extensively. At the time of the incident the roadway was dry and no traffic was approaching from either direction. There were tire tracks leading across the highway and then along the east berm of the place it left the highway. The tire marks were 585 feet in length.

The Jeep had been purchased new by Dunn on March 24, 1971. It was titled in his wife's name.

The case of Franz Schwarzbach v. Perry J. Dunn and Jim Boyle Chevrolet, Inc., the Jeep dealer, and Jeep Corporation is an action in trespass alleging negligence on the part of Dunn, the vehicle's operator. Jim Boyle Chevrolet was later dismissed from this case by mutual agreement of the parties.

The case of Gaylor v. Jeep Corporation is an action in trespass alleging a defective product under ยง 402A of the Restatement of the Law of Torts.

In the Gaylor case the jury returned a verdict in favor of the plaintiff in the sum of $20,000.00. The court below awarded the plaintiff a new trial on the issue of damages only upon motion of the plaintiff.

In the Schwarzbach case the jury awarded a verdict in favor of the plaintiff in the sum of $600,000 against the Jeep Corporation only. Jeep Corporation is now appealing that case and also the order of the court below awarding a new trial to Gaylor limited to the question of damages only. The lower court had consolidated both cases and they were tried together.

At trial the plaintiffs' position was that the Jeep was dangerously defective because dirt had entered into the brake fluid causing the brakes to fail and that this caused the ...


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