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ALEX J. CHURILLA AND GRAYCE D. CHURILLA v. ROBERT BARNER (08/29/79)

filed: August 29, 1979.

ALEX J. CHURILLA AND GRAYCE D. CHURILLA, CO-ADMINISTRATORS OF THE ESTATE OF CARL J. CHURILLA, DECEASED, ON BEHALF OF THE ESTATE OF CARL J. CHURILLA, DECEASED, AND ALEX J. CHURILLA AND GRAYCE D. CHURILLA, CO-ADMINISTRATORS OF THE ESTATE OF CARL J. CHURILLA, DECEASED, ON BEHALF OF THE NEXT OF KIN OF THE SAID CARL J. CHURILLA
v.
ROBERT BARNER, APPELLANT, V. ESTATE OF JOEL RUBENSTEIN



No. 811 April Term, 1978, Appeal from the Judgment in the Court of Common Pleas of Allegheny County, Civil Division, No. 2117 October Term, 1974.

COUNSEL

Andrew M. Schifino, Pittsburgh, for appellant.

Kirby Lee Boring, Pittsburgh, for appellees Churilla.

No appearance on behalf of Estate of Joel Rubenstein.

Price, Hester and Watkins, JJ.

Author: Price

[ 269 Pa. Super. Page 102]

In their complaint initiating this action, appellees, the parents of Carl J. Churilla, alleged that their son was killed in an automobile accident caused by the negligence of appellant.*fn1 Pursuant to a non-jury trial conducted on May 26, 1977, judgment was entered for appellees in the amount of $3,000 on the survival action, and $47,000 on the wrongful death action. For the reasons stated herein, we reverse the judgment of the trial court.

The sole testimony presented by appellees relating the circumstances of the crash was provided by one Michael Cervo.*fn2 Mr. Cervo testified that on August 18, 1973, he was visiting his parents, whose residence fronts on the southern berm of Route 30 in North Versailles. At a point in front of the Cervos' home, Route 30 is a four lane highway accommodating east and westbound traffic. The east and westbound lanes are separated by a double solid line, and the road is set on a fairly level plain. Directly opposite the Cervo property, on the northern berm of the highway, is a hillside and a driveway leading to a J. C. Penney warehouse. There are street lights illuminating the section of the roadway immediately in front of the residence.

While visiting, Mr. Cervo was sleeping in a second floor bedroom. Three feet from his bed was a window overlooking Route 30. The window was up with a shade pulled halfway down and curtains hanging on the side. A silver screen covered the bottom portion of the window. Some

[ 269 Pa. Super. Page 103]

    foliage and trees were present in the front of the yard, but they did not obscure a view of the highway from the window.

At approximately 3:30 that morning, Mr. Cervo was awakened for some unexplained reason. He sat up in bed, and as he was approaching an upright position, heard a crash outside his window. He immediately turned to the window and observed*fn3 a Volkswagon Karmann Ghia and a Pontiac "united in a head-on-position", both in the eastbound lanes of Route 30. The two cars were joined at their respective right front sections, with the Volkswagon pointing northeast and the Pontiac facing southwest. At the initial moment of observation, the Volkswagon was located in the eastbound lane closer to the southern berm, while the Pontiac was positioned partially in each eastbound lane; both vehicles were locked in the beginning of a clockwise rotation moving linearly westward on Route 30.

After observing this scene for a second, during which the cars moved perhaps thirty (30) feet, Mr. Cervo turned his head from the window and spoke to his brother, who was sharing the room that evening. When he turned back to the road, he leaned out the window and noted the cars at rest some 125 feet west of the point of original observation. The Volkswagon ended its spin against the northern berm facing in a westerly direction, while the Pontiac straddled the double center line. Mr. Cervo then dressed and went outside the house to survey ...


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