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FREDERICK W. OSTERRITTER v. CHARLES H. HOLL V. MOSITES CONSTRUCTION CO. (10/20/78)

decided: October 20, 1978.

FREDERICK W. OSTERRITTER, APPELLANT,
v.
CHARLES H. HOLL V. MOSITES CONSTRUCTION CO., A CORPORATION, AND GLASGOW, INC., A CORPORATION



No. 45 April Term, 1978, Appeal from the Judgment dated July 15, 1977, at No. 1819 July Term, 1973, Civil Division, Court of Common Pleas of Allegheny County, Pa.

COUNSEL

Albert G. Feczko, Jr., Pittsburgh, for appellant.

Robert E. Wayman, Pittsburgh, with him Eugene F. Scanlon, Jr., Pittsburgh, for appellees.

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

Author: Per Curiam

[ 259 Pa. Super. Page 114]

This trespass action arises out of a rear end collision involving a dump truck and an automobile on the Parkway West in Allegheny County on December 1, 1971. Following a jury trial, verdicts were returned for both plaintiffs. The court decided that the verdicts were inconsistent and resubmitted the case to the jury following an additional charge. Verdicts were then returned in favor of all defendants. Appellant's motion for a new trial was denied and he filed this appeal arguing, inter alia, that the court's charge to the jury was so conflicting and ambiguous as to preclude the jury from properly discharging its duty. We agree and order a new trial.

Certain facts were not in dispute. On the day in question, Glasgow, Inc., appellee herein, was engaged in road construction on the inbound lanes of the Parkway West in and about the area of the I-79 Interchange. Appellant-plaintiff

[ 259 Pa. Super. Page 115]

Osterritter, an employee of Glasgow, parked his dump truck owned by Glasgow, that morning in the right-hand lane of the inbound roadway as protection for the construction men working on the road immediately in front of the truck.

It was bitterly contested whether Osterritter and Glasgow took proper measures in warning inbound traffic of the approaching construction area. Plaintiff-appellant's witnesses testified to the effect one Hickman, also a Glasgow employee, acted as flagman and, attired in a red vest, stood 150-200 feet behind the dump truck, waving traffic into the left lane in order to warn them of the parked dump truck ahead. Various signs were also placed at certain distances behind the truck warning of hazards ahead, cautioning motorists to reduce speed and to drive only in the left lane. On the back of the dump truck, in which appellant remained seated, was displayed a large sign with a directional arrow and flashing red lights.

Appellee-defendant Holl testified he was driving his car inbound around noon in the left-hand lane of the Parkway West. He noticed no signs posted on the road, nor did he see a flagman. A large garbage truck, traveling in the right-hand lane suddenly veered in front of Holl.*fn1 In an attempt to avoid a collision, Holl swerved into the right lane and seconds later ran into the rear of appellant Osterritter's dump truck. Both Holl and Osterritter sustained injuries. Osterritter was seated in the truck at the time.

Osterritter filed a complaint at No. 1819 July Term, 1973, against Holl. Glasgow was joined as additional defendant.*fn2 Holl later filed a complaint against Glasgow, at No. 2471 January Term, ...


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