No. 1067 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Action-Law at No. 76-10704
Richard T. Abell, Ambler, for defendant.
Benjamin E. Zuckerman, Norristown, for defendant Conricode.
No brief filed on behalf of appellee Younginger.
Van der Voort, Watkins and Montgomery, JJ.
[ 269 Pa. Super. Page 447]
This is a trespass action involving survival and wrongful death claims brought by the Administratrix of the Estate of Albert W. Younginger (hereinafter, the plaintiff) against appellant, George P. Heckler, Jr., (hereinafter Heckler). Heckler joined Clare Conricode, (hereinafter, Conricode), as an additional defendant, but subsequently died and his widow, as administratrix of his estate, was substituted for him. Plaintiff has taken the depositions of the additional defendant, Conricode, a police officer and two witnesses to the accident in which Younginger was killed. No depositions, affidavits or testimony of any sort was taken by or on behalf of Heckler. The additional defendant, Conricode, filed a Motion for Summary Judgment, which the trial court granted, dismissing the complaint against Conricode by an Order dated February 16, 1978. The administratrix of Heckler, the original defendant, has appealed from that Order. The plaintiff has not appealed.
The appellant's objection to the Order is based on two arguments: (1) that it was error to consider the testimony of Conricode because Heckler's death makes Conricode's testimony incompetent under the so-called dead man's rule; and (2) that the credibility of the witnesses whose depositions were the basis of the court's order of dismissal should have been submitted to a jury. We find no merit in either contention.
The accident out of which this suit arose occurred about 6:30 P.M. on December 5, 1975 on a four-lane highway in Montgomery County known as Moreland Road. It was dark at the time and the highway was dimly illuminated from the lights of a nearby service station. The decedent, Albert W. Younginger, wearing dark green clothes, undertook to walk across this thoroughfare at a point about one hundred feet from the nearest pedestrian walkway which was at a highway intersection controlled by traffic lights. A double yellow line divided the two lanes of traffic which were east bound from the two lanes which were west bound but there was no barrier or space between the east bound and the
[ 269 Pa. Super. Page 448]
west bound traffic lanes. Traffic was reasonably heavy and cars were using all four lanes of the highway. When Younginger arrived at the middle of the highway, he stopped near the double yellow dividing line about a foot within the east bound lane of traffic. At this time, Heckler was driving east on the highway in the left lane and Conricode was driving west in her left lane. She was proceeding under the speed limit and at a reasonable rate of speed. She observed Younginger standing near the middle of the highway when she was about five car lengths from him and slowed her vehicle and applied her brakes in response to this observation. At that time, there was traffic in both west bound lanes.
While thus standing slightly within the east bound lane of traffic, Younginger was struck by the vehicle driven by Heckler. This impact caused Younginger to be thrown across the double yellow line dividing east and west bound traffic into the path of the Conricode car. He was struck by the Conricode vehicle and dragged under it some twenty-six feet before the car was brought to a stop. He was dead when removed from under the Conricode vehicle.
There was no evidence in contradiction of this testimony which was taken on the plaintiff's depositions from Conricode, two eye witnesses who were riding in an automobile immediately behind her car at the time of the accident, and a patrolman who reached the ...