No. 2261 October Term, 1977, Appeal from the Order dated July 14, 1977, of the Court of Common Pleas, Elk County Branch, Civil Division, Action in Trespass at No. 405, April Term, 1973.
Thomas G. Wagner, St. Marys, for appellants.
Norbert J. Pontzer, Ridgway, for appellees.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort and Hester, JJ. Hester, J., dissents. Spaeth, J., did not participate in the consideration or decision of this case.
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Appellants contend that the lower court's verdict was against the weight of the evidence. We disagree and affirm.
On September 6, 1973, appellants filed a complaint in trespass in the Elk County Court of Common Pleas seeking damages resulting from an accident in which appellees' pick-up truck struck the rear of appellants' automobile. At a non-jury trial on July 15, 1975, appellant, Joseph Floravit, testified that on September 7, 1971, at approximately 4:15 p.m., he was driving southbound on Pennsylvania Route 255, a two lane highway, in Benzinger Township, Elk County. His daughter, appellant, Cynthia Floravit, was a passenger in the car. At the crest of a hill, he brought his car to a stop behind a car which was awaiting a break in the oncoming traffic in order to make a left turn. While stopped, his car was suddenly struck from behind by a pick-up truck driven by appellee, David Kronenwetter. The impact of the collision propelled appellant's car into the rear of the lead automobile. Appellant testified that his car was considerably damaged and that, as a result of the accident, he experienced neck and back pain which required medical
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attention and periodic hospitalization. Moreover, his physical condition rendered him unable to return to work until January 30, 1973, approximately fifteen months after the accident.*fn1
Appellee, David Kronenwetter, testified that at the time of the accident, he was employed by appellee, Church and Murdock Electric Company, Inc., and, in the course of his employment, was operating his employer's pick-up truck southbound on Route 255. Appellee observed appellant's stopped vehicle at a distance of about 500 feet, applied the footbrake, and slowed his speed from approximately 25 miles per hour to less than 5 miles per hour. At a distance of approximately one car length from appellant's vehicle, appellee lost all braking power. Before he had an opportunity to engage the emergency brake, his truck collided with appellant's vehicle.
On cross-examination, the following exchange occurred concerning appellee's response to the brake failure:
"Q. Is there any reason Dave, why you could not have turned out to the right to avoid striking Mr. Floravit's car?
"A. There is an embankment there.