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ALICIA M. STACY v. THROWER TRUCKING (04/13/78)

decided: April 13, 1978.

ALICIA M. STACY, APPELLANT,
v.
THROWER TRUCKING, INC., A CORPORATION, AND CHARLES G. KELLEY, AN INDIVIDUAL



No. 261 April Term, 1977, Appeal from the Order of October 27, 1976 of the Court of Common Pleas of Allegheny County, Civil Division at No. 3083 April Term, 1974, Civil Action - Law.

COUNSEL

Thomas H. Welsh, Pittsburgh, for appellant.

W. Arch W. Irvin, Jr., Pittsburgh, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 253 Pa. Super. Page 152]

Appellant raises the following contentions: (1) the lower court improperly charged the jury on both the "assured clear distance" rule and the "sudden emergency" rule, (2) the jury verdict was against the law, (3) the verdict was against the

[ 253 Pa. Super. Page 153]

    weight of the evidence, (4) the incontrovertible physical facts required a verdict in appellant's favor, (5) the lower court erred in refusing to read certain requested instructions, and (6) the lower court improperly allowed the jury to consider the testimony of two eyewitnesses who testified on appellees' behalf. Because these contentions lack merit, we affirm the judgment entered by the lower court.

On April 15, 1974, appellant filed a summons and complaint in trespass against appellee Charles Kelley, a truckdriver, and appellee Thrower Trucking Company, Kelley's employer. The complaint alleged that on May 11, 1972, Kelley negligently operated a cement mixer which collided with appellant's vehicle on Route 8 in Richland Township, Allegheny County. As a consequence, appellant suffered severe injuries and her vehicle was extensively damaged. The complaint also alleged that appellee Thrower Trucking Company was liable under the doctrine of respondeat superior for the negligent conduct of its employee. On January 14, 1976, a jury trial commenced in the Allegheny County Court of Common Pleas. At trial, the parties produced the following testimony.

Geoffrey D. Gordon, called on appellant's behalf, testified that on May 11, 1972, at about 9:30 a. m., he was driving a passenger automobile in the northbound passing lane of Route 8. Route 8 is an undivided four lane highway passing through Richland Township; two lanes of travel go north, two south. Gordon, driving at a speed of 50 miles per hour, was 4 or 5 car lengths behind appellant's car which was travelling in the northbound curb lane at about 50 miles per hour or a little slower. As his car passed over the top of a hill on Highway 8, Gordon observed a cement mixer truck travelling in the southbound curb lane. The cement mixer was at the top of a hill opposite Gordon's position; about three-tenths of a mile separated these two points. In between the two hills, the road levelled out. On his right, Gordon observed a station wagon stopped at the end of an entrance ramp which led northwesterly from Bakerstown Road into Route 8. This station wagon proceeded across

[ 253 Pa. Super. Page 154]

    four lanes of traffic and turned left into the southbound curb lane, immediately in front of the cement mixer. When the station wagon moved into the southbound curb lane, the cement mixer veered into the southbound passing lane and then swerved back toward the curb lane. At this point, the truck toppled over, slid into the northbound lanes, and ultimately smashed into appellant's vehicle which had come to a complete halt. The force of the truck's impact pushed appellant's car a distance of about 50 feet. Although Gordon testified that appellant had no opportunity to avoid the collision, he himself escaped contact by swerving around the cement mixer and appellant's vehicle. As Gordon executed this maneuver, he observed the station wagon accelerate and leave the accident scene.*fn1

Appellant also presented the testimony of Dr. James Romualdi, a professor of civil engineering at Carnegie-Mellon University. On the basis of his examination of a police report, several depositions, photographs, and skid marks, Romauldi determined that the cement mixer initially skidded 140 feet after applying its brakes and before flipping over, 127 more feet before it hit appellant's car, and 58 more feet after the collision. The cement mixer also demolished thirteen guardrails. Dr. Romauldi concluded that prior to skidding, ...


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