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LEON J. SULLIVAN AND ELIZABETH SULLIVAN v. ISADORE WOLSON (12/14/78)

decided: December 14, 1978.

LEON J. SULLIVAN AND ELIZABETH SULLIVAN, APPELLANTS,
v.
ISADORE WOLSON, INDIVIDUALLY AND T/A WOLSON FURNITURE CO.



No. 821 October Term, 1978, Appeal from the Final Judgment Entered January 12, 1978, of the Court of Common Pleas of Delaware County, Civil Action - Law Division, at No. 71-13440 In Trespass.

COUNSEL

William C. Archbold, Jr., Media, for appellants.

Edward J. Carney, Jr., Media, for appellee.

Price, Hester and Hoffman, JJ. Price, J., dissents.

Author: Hoffman

[ 262 Pa. Super. Page 399]

Appellant contends that the court below erred in refusing to grant her a new trial because the trial judge erroneously: (1) charged the jury that she (plaintiff below) might be found contributorily negligent, (2) charged that appellee (defendant below) might be excused from liability because of a sudden emergency, and (3) failed to charge that the defendant could be found guilty of reckless and wanton misconduct. We agree with the first two of these contentions, and therefore remand the case for a new trial.

[ 262 Pa. Super. Page 400]

This lawsuit grows out of a series of three collisions all occurring within two or three minutes of each other on Township Line Road in Upper Darby Township. Township Line Road is a 60 foot wide highway, with six lanes divided by a double yellow line, and a posted speed limit of 35 m. p. h. There are two driving lanes each for eastbound and westbound drivers, and on either side of the road is an outermost parking lane, which is not used for traffic. Proceeding westerly, the road passes through several intersections: Dermond, Reservation, Apache, and Oleander Roads, respectively. On the north side between Reservation and Oleander, a series of houses front onto Township Line Road with driveway access to the westbound lanes.

Appellant testified as follows. She was driving westerly on Township Line Road on January 9, 1970, early in the morning on a clear day. Although it had snowed earlier in the week, the road was clear up to Dermond Road. Past that point, however, the road surface was visibly icy. Just past Reservation Road, she had a slight rear-end collision with a car in front of her driven by Harold Merves. Merves pulled his car over to the extreme right, and stopped along the curb in the westbound parking lane. Seeing this, appellant also pulled over into the parking lane, stopping about three car lengths in front of Merves, near the corner of Apache Road.

As appellant parked her car, she looked in her rear-view mirror and saw a vehicle driven by John Charles Moore come up from behind Merves, hit the left rear of Merves' car and skid all the way across Township Line Road. Merves' car was still at the curb -- it did not seem to have moved much from the impact. Neither of the cars were blocking the driving lanes of the highway; there was still room for two westbound cars to pass.

Appellant got out of her car, walked back and met Merves at the curb in front of his car. Moore got out of his car, crossed the street, and joined appellant and Merves in between the cars. At this point appellant lost consciousness, and woke up lying on the road, dazed.

[ 262 Pa. Super. Page 401]

Harold Merves' testimony concerning the conditions of Township Line Road matched appellant's testimony. After Dermond Road, he could see the ice on Township Line Road and other cars slowing down on it. It was icy enough, he thought, that a good driver would know it would be a "horrible thing" to brake on suddenly. Appellant's car made a very slight contact with the rear of his car in the right-hand driving lane, and then passed him on the left. He slowed down to pull over, but before he got out of his lane, he was struck again from behind on the left rear of his car by the vehicle driven by John Charles Moore. The contact pushed the Merves car up against the curb in the parking lane, with the rear of the car at a slight angle, three or four feet away from the curb. Appellant came over ...


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