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KESTER v. HART

April 1, 1981

Mary Kay KESTER, Plaintiff,
v.
George Michael HART, Defendant



The opinion of the court was delivered by: MARSH

MEMORANDUM

On June 12, 1978, the plaintiff, Mary Kay Kester, was a passenger in a two-door Pinto automobile driven by the defendant, George Michael Hart. Hart had borrowed the car from a friend. While driving on Route 144 from Renova to Clearfield, the car went off the right side of the two lane black top highway, turned over, and seriously injured the plaintiff.

 At the time of the accident, it was raining hard and was foggy. According to the defendant, he was driving uphill on a straight stretch of road at a speed between 25 and 35 miles per hour. Streams of water were coming from the left side of the road. He testified that the car hydroplaned off the road. He said he had a prior experience of a car hydroplaning on a road in heavy rain. He explained hydroplane viz: a car floats on top of water. *fn1"

 Typical of a passenger, the plaintiff evidently was not paying close attention to the defendant's manner of driving at the time of the accident. She did not testify as to the speed of the car at the time of the accident nor could she specify how the defendant drove the car off the road on the right side. She believed the car travelling uphill went off the road on a left turn. She believed the defendant was travelling too fast to negotiate the turn.

 In a special verdict the jury found that the defendant was not negligent.

 The plaintiff moved for judgment n. o. v. and for a new trial.

 Upon some of the facts submitted by plaintiff, the jury could have presumed negligence on the part of the defendant. However, as part of plaintiff's case, portions of the deposition of the defendant were read into evidence. In those portions the defendant testified that the car hydroplaned on the water on the road and left the roadway. *fn2" Also, in defense, the defendant testified that the car hydroplaned off the road. Similar to skidding on an icy road, hydroplaning is not negligence unless the defendant's negligence caused the car to hydroplane.

 As stated in Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3rd Cir. 1976):

 
"The trial judge in his review of the evidence ... must expose the evidence to the strongest light favorable to the party against whom the motion is made and give him the advantage of every fair and reasonable inference." (Citations omitted.)

 The "credibility of the evidence and the weight of it" are outside the perimeter of the court's review.

 It is our opinion that the facts posed a jury question. The motion for judgment n. o. v. will be denied.

 As to the motion for a new trial the plaintiff averred:

 
"1. That the verdict of the jury was motivated by prejudice and bias and in disregard of the court's instructions on the law and ...

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