No. 1002 April Term, 1978, Appeal from Order of the Court of Common Pleas of Allegheny County, Civil Division - Trespass, at No. 2712 January Term, 1975.
P. Christian Hague, Pittsburgh, for appellant.
Harry W. Miller, Pittsburgh, did not file a brief on behalf of Letavec, appellee.
Bruce R. Martin, Pittsburgh, for Sanino, appellee.
Louis Anstandig, Pittsburgh, for Yablonski, appellee.
H. Fred Mercer, Pittsburgh, for Bistarkey, appellee.
Spaeth, Watkins and Van der Voort, JJ. Spaeth, J., files a concurring and dissenting statement.
[ 294 Pa. Super. Page 198]
This case comes to us on appeal from the Court of Common Pleas of Allegheny County, Civil Division, and involves the plaintiff-appellant's appeal from an order of the court below which refused plaintiff's Motion to Take Off a Non Suit granted to the defendants after the presentation of the plaintiff's case. Plaintiff had sued four defendants under the Wrongful Death and Survival Act.
Plaintiff is the executor of the estate of Eugene Pio, deceased, who was killed on December 11, 1973 at approximately 9:00 P.M. on Route 51 in Forward Township, Allegheny County, Pennsylvania. At the location of the accident Route 51 is a four lane divided highway with two lanes proceeding in a northerly direction and two lanes proceeding in a southerly direction. The decedent was killed when he stepped off a medial divider and was struck by one or more vehicles. The first vehicle to strike the decedent was a 1970 Chevrolet operated by a Steve Letavec. Letavec testified that he struck the decedent when the decedent stepped off the medial divider into the left hand lane of Letavec's direction of travel (north). He was travelling in the left lane because the right lane was torn up in that area and is in a state of disrepair. Letavec, hereinafter referred to as defendant 1, then stopped his vehicle. He had not run over the decedent. A dent in the left hand area of his hood area of his vehicle cost $47 to repair. He had been going 40-45 miles per hour at the time of impact. At trial an expert medical witness, Dr. Joshua Perper, testified that in his opinion the impact of defendant 1's vehicle with the decedent would not have caused the injuries which resulted in the decedent's demise. Defendant 1 further testified that he only observed the decedent upon impact with him, that he
[ 294 Pa. Super. Page 199]
was wearing dark clothing, and that the area was dark and not well-lighted by street lights. After the collision defendant 1 stopped his automobile and then stated that he saw several other cars go by the scene. He stated that he observed "one, two I saw" other vehicles strike the decedent as he was laying on the roadway. The record reveals that defendant 1 and his insurance carrier have been released from any liability by plaintiff as of February 16, 1976. The consideration for the release was $15,000, defendant 1's policy limit. Thus, the case against defendant 1 is moot.
Defendant 2 is Michael Yablonski and defendant 4 is James Bistarky both of whom were operators of motor vehicles who arrived on the scene after the initial impact whereby defendant 1 struck the deceased. Plaintiff alleges that both defendant 2 and defendant 4 struck the decedent while he was laying in the road. The only evidence to support the allegation that defendant 2 struck the deceased is that defendant 3, Raymond Sanino, testified that the decedent was straddling both lanes of the northbound lane of Route 51 when defendant 3 approached and that defendant 2 testified that decedent was completely in the right hand lane of said roadway as he ...