No. 935 APRIL TERM, 1979, Appeal from Judgment of the Court of Common Pleas of Erie County, Pennsylvania at No. 2841A of 1976, Civil Division.
George M. Schroeck, Erie, for appellant.
James D. McDonald, Jr., Erie, for Tabb, appellee.
Edward W. Goebel, Jr., Erie, for Goetz, appellee.
Cavanaugh, Hoffman and Van der Voort, JJ. Cavanaugh and Hoffman, JJ., concur in the result.
[ 285 Pa. Super. Page 355]
This is a trespass action by an automobile passenger to recover damages for injuries suffered when the car was driven off the highway to avoid a head-on collision with an on-coming car. The drivers of both cars were named as defendants. A jury has returned a verdict in favor of the defendants and a judgment has been entered for them. On appeal, the plaintiff-appellant seeks either a judgment non obstante veredicto on the ground that the verdict was against the evidence, or a new trial because the verdict was against the weight of the evidence. We sustain the judgment of the court below for the reasons hereinafter set forth.
The accident occurred in the early afternoon of July 29, 1975 in a rural section of Erie County on Route 97 north of Waterford and approximately one mile south of Talcott. The highway was 24 feet wide and accommodated two lanes of traffic, one in each direction. Speed was posted at 55 miles per hour. Visibility was good. The road had been freshly blacktopped for about a week for a distance of a mile or more from the scene of the accident, but the berm on both sides of the highway had not yet been brought up to the grade of the road. There was a drop-off from the surface of the road to the berm varying from 4 to 18 inches. Sawhorses equipped with amber lights were placed on the
[ 285 Pa. Super. Page 356]
berm on both sides of the road at intervals of about 200 feet to warn of the drop-off. However, there were no construction workers, flagmen or equipment in the area. The highway was dry although mid-day heat would have a tendency to make the road slicker than normal by softening the newly placed tar and oil components.
As the drivers of the two cars approached each other, Richard L. Goetz, appellee, was headed south toward Waterford and Michael Tabb, appellee, was headed north toward Talcott. The appellant, Neil S. Troutman, was a passenger in the right front seat of the automobile driven by Goetz. As the cars approached each other, the right wheels of Tabb's car left the pavement and dropped to the berm as Tabb was rounding a curve. This occurred within a few hundred feet of the approaching Goetz car. Both cars were being driven at approximately 50 miles per hour as they approached each other, although Tabb slowed his car appreciably when his right wheels dropped to the berm in order to get his car back onto the highway. This maneuver involved getting the right wheels of Tabb's car up from the berm to the surface of the highway. Tabb drove with the right wheels on the berm for approximately 68 feet.
In order to get his car back onto the highway, Tabb necessarily turned his steering wheel sharply to the left. As he succeeded in reentering the highway, his car veered too far to the left and into the southbound lane of the on-coming Goetz car. This occurred within a car length or two of a head-on collision. Both drivers reacted instantly and instinctively by turning their cars sharply to the right. They were successful in avoiding a collision but both cars plunged off the highway, Goetz and his passenger, Troutman, going off on the west side of the road while Tabb's car jumped the highway on the east side. Tabb suffered multiple injuries and was hospitalized for several months. Goetz was unhurt, but Troutman was shaken up and fell out of ...