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JOHN D. YESKO v. BAILLE INDUSTRIES (03/11/83)

March 11, 1983

JOHN D. YESKO, APPELLANT
v.
BAILLE INDUSTRIES, INC., ATOMATIC MANUFACTURING CO., AND THE BOROUGH OF CHALFANT, A MUNICIPAL CORPORATION,
v.
ATOMATIC MANUFACTURING CO., AND THE BOROUGH OF CHALFANT, A MUNICIPAL CORPORATION, AND THE BOROUGH OF FOREST HILLS; JOHN D. YESKO,
v.
BAILLE INDUSTRIES, INC., ATOMATIC MANUFACTURING CO. AND THE BOROUGH OF CHALFANT, A MUNICIPAL CORPORATION,
v.
BOROUGH OF FOREST HILLS, A MUNICIPAL CORPORATION, APPELLANT; JOHN D. YESKO
v.
BAILLE INDUSTRIES, INC., ATOMATIC MANUFACTURING CO., AND THE BOROUGH OF CHALFANT, A MUNICIPAL CORPORATION,
v.
BOROUGH OF FOREST HILLS, A MUNICIPAL CORPORATION, APPEAL OF: BAILLE INDUSTRIES, INC



No. 782 Pittsburgh, 1981, No. 814 Pittsburgh, 1981, No. 818 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 77-7209

Before Brosky, Johnson and Montgomery, JJ.

MEMORANDUM OPINION:

Appellant John D. Yesko brought this action to recover damages for injuries he suffered when the vehicle he was driving collided with a piece of machinery owned by Baille Industries, Inc. Baille Industries had been hired to do some excavation work by Atomatic Manufacturing Company, which is located in the Borough of Chalfant. The work was necessitated by an increase in water pressure in a manhole located next to the Atomatic Building on West Street.The machine, a backhoe, was used on June 16, 1975 and remained on the street when work was ceased at approximately 8 p.m. The accident in which Mr. Yesko was injured apparently occurred after midnight, but before 1:48 a.m. on June 17. Mr. Yesko's pickup truck collided with the bucket of the backhoe and was found by police officers turned on its roof.

It is Mr. Yesko's contention that the accident occurred as a result of the negligence of the named defendants in leaving the backhoe in the street at night. A jury returned a verdict in his favor in the amount of $30,000 against all defendants.

The defendants moved for new trial and/or judgment n.o.v. The lower court granted new trial and denied the judgment n.o.v. motion. Mr. Yesko appeals the grant of new trial and Baille Industries and the Borough of Forest Hills have appealed the denial of their motions for judgment n.o.v.

The lower court granted the motion for new trial because it concluded that the trial court erred in ruling that proffered testimony as to intoxication was inadmissible. The defendants had sought to introduce the testimony of a bartender who, while he did not serve alcohol to appellant Yesko, nor see him drinking, nonetheless concluded based on his observation of him shortly before the accident, that Mr. Yesko was intoxicated.

On appeal, Mr. Yesko argues that the lower court erred in granting new trial on these grounds because the proffered testimony lacked an adequate factual basis.

In their appeal, Baille Industries and Forest Hills argue that judgment n.o.v. should have been granted because Mr. Yesko did not sustain his burden of proof as to negligence and that, in any event, he should have been found contributorily negligent as a matter of law.

We have carefully reviewed these issues and the record and conclude that the lower court did not err in its disposition of the motions. The issues are thoroughly and ably discussed in the lower court opinion and we need comment no further.

Order affirmed.

Appendix

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

JOHN D. YESKO, Plaintiff, v. KEN BAILLE, t/d/b/a BAILLE INDUSTRIES, INC., ALEX KINDLING, t/d/b/a ATOMATIC MANUFACTURING CO., and the BOROUGH OF CHALFANT, a municipal corporation, Original Defendants, v. KEN BAILLE, t/d/b/a BAILLE INDUSTRIES, INC., ALEX KINDLING, t/d/b/a ATOMATIC MANUFACTURING CO., and the BOROUGH OF CHALFANT, a municipal corporation, and THE BOROUGH OF FOREST HILLS, Additional Defendants.

No. G.D. 77-7209

Before: Finkelhor, Barry and Narick, JJJ.

FINKELHOR, J.

July 20, 1981

The above-captioned matter in trespass is before the Court en banc on the motions of all defendants for a new trial and/or judgment n.o.v. following a jury verdict rendered March 13, 1980, in favor of plaintiff in the amount of $30,000*fn1 against all defendants. The major issue in dispute is whether the Court erred in excluding opinion testimony of the alleged intoxication of plaintiff prior to a single car automobile accident.

The facts adduced at trial, viewed in the light most favorable to plaintiff, and resolving all conflicts in plaintiff's favor, are summarized below.

Plaintiff was injured in the early morning hours of June 17, 1975, when the truck he was operating struck the bucket of a backhoe parked in the northbound lane of West Street, in the Boroughs of Forest Hills and Chalfont in the County of Allegheny and located on the dividing line of the two municipalities.

During the morning of June 16, 1975, Alex Kindling, president of Atomatic Manufacturing Company in the Borough of Chalfant, noticed an increase in water pressure in a manhole located next to his building on West Street. Mr. Kindling met with officials of both the Boroughs of Chalfont and Forest Hills to discuss the problem and to request a backhoe for necessary repairs. Neither Borough owned nor had access to the necessary digging equipment. Mr. Kindling further requested from both Boroughs warning barricades to be used when the digging equipment became available. At approximately 4:45 the same evening, Kenneth Baille, owner of Baille Industrial Co., was contacted and hired by Kindling to excavate with his backhoe the problem site on the Kindling property, located adjacent to the northbound lane of West Street. Dirt was deposited on the sidewalk and street. Both Boroughs were alerted to the work and sent representatives to the site (T. at 230, et seq.) and one of the Boroughs also sent four sawhorses to the area.*fn1a

West Street is a two-lane street running north and south and is approximately 26 feet wide. West Street divides the Boroughs of Forest Hills and Chalfont and is a straight road with an estimated view of 500 to 700 feet. The posted speed limit is 25 m.p.h.

Beginning at 6:00 p.m., Mr. Baille began digging with the backhoe and removed approximately 16 feet of dirt from the sewer area and placed it on the sidewalk within the radius of the backhoe. At approximately 8:00 p.m., due to inadequate light, Baille stopped work and left the backhoe in its operating position on West Street to prevent vehicles from driving too close to the excavation.The backhoe, which weighed approximately 10-1/2 tons, was painted bright yellow. There were no lights, flares or reflectors on the backhoe itself and the bucket extended across the center of the road. The nearest street light was approximately 150 feet away.

Mr. Brezarich, a police officer of the Borough of Chalfont, testified that he received a complaint on the evening of June 16th concerning an obstruction on West Street. The complaint was made by phone to the Borough of Forest Hills, which acts as the central dispatching station for police calls involving the Boroughs of Chalfont, Wilkins, Churchill and Forest Hills. When Officer Brezarich went to the scene at approximately 7:00 p.m., there were four sawhorses at the site, provided by either Forest Hills or Chalfont. Two of the sawhorses were aluminum frame, painted black and white striped, with a battery-operated amber flasher approximately 6 to 8 inches in diameter. The aluminum horses were located 50 feet from the excavation. The other two sawhorses were wooden, 8 to 10 feet long, and were also painted black and white. Neither of the wooden sawhorses had blinkers or lights.

Mr. Brezarich directed that the aluminum horses be moved to the intersection of West Street and Highland Avenue and at the intersections of West Street, Avenue F and North Avenue, approximately 100 feet north and south of the excavation. The wooden horses were placed on the sidewalk on the south side of the backhoe and on the outside of the excavation. A cardboard sign saying "Road Closed" was placed on the aluminum horse to the south of the intersection.

Witness Glew, who drove by the site, testified that he was able to see the backhoe when driving with lights. The witness Kowalski testified that the bucket of the backhoe was not visible. However, all witnesses agreed that there was sufficient space to drive by the obstruction.

At approximately 1:48 a.m. on June 17th, the police sergeant for the Borough of Forest Hills received a call to go to an accident on West Street in Chalfont and at approximately 2:00 a.m., an off-duty police officer of Chalfont drove upon the scene of the accident. At that time, a pickup truck driven by the plaintiff Yesko was turned on its roof in the southbound lane. The backhoe had moved approximately five to ten feet and the aluminum sawhorse was in the middle of the road. Kindling, who went to the scene about 2:15 a.m., testified that he did not see skid marks in the area. Mr. Yesko, the driver of the truck, was taken to the hospital for treatment of injuries sustained and remembers nothing of the collision.

Yesko testified that he had been in Wall earlier in the evening at the Wall Hotel,*fn2 and felt ill and borrowed a friend's truck, drove to Turtle Creek to find another friend at approximately 11:00 p.m., and had no recollection beyond that time.

To support the defense of intoxication, defendants sought to introduce the testimony of bartender Burchell that the plaintiff entered the Journey's End Bar approximately 30 to 60 minutes before the accident and that, in his opinion, plaintiff was visibly intoxicated.

PROCEDURE

Plaintiff brought this action in trespass against Ken Baille, t/d/b/a Baille Industries, Inc., alleging negligence in obstructing a public street without adequate warnings; against Alex Kindling, t/d/b/a Atomatic Manufacturing Co., alleging negligence in failing to properly supervise the construction on, and adjacent to, his premises; and against the Borough of Chalfont alleging negligence in failing to supervise an obstruction in a public street and failure to warn of the dangerous condition. The Borough of Chalfont joined the Borough of Forest Hills as the situs of the accident. ...


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