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FERRICK EXCAVATING AND GRADING v. SENGER TRUCKING COMPANY (04/22/83)

filed: April 22, 1983.

FERRICK EXCAVATING AND GRADING, APPELLANT,
v.
SENGER TRUCKING COMPANY, A PARTNERSHIP, AND WILBUR A. SENGER AND MACARIUS J. SENGER JR., PARTNERS AND INDIVIDUALLY



NO. 1024 PITTSBURGH 1981, Appeal from the Order of September 11, 1981 in the Court of Common Pleas of Erie County Civil Action, No. 3938 A. 1978.

COUNSEL

William C. Sennett, Erie, for appellants.

William Sesler, Erie, for appellees.

Cercone, President Judge, and Beck and Montemuro, JJ.

Author: Beck

[ 315 Pa. Super. Page 72]

The Erie County Court of Common Pleas en banc granted a motion for a new trial to appellee Senger Trucking Company, on the basis of inconsistency in the jury verdict and error in the trial court's charge, and Ferrick Excavating and Grading Company appeals the order.

In March 1978, Ferrick Excavating entered into an oral agreement with Senger Trucking to transport Ferrick Excavating's wheeled high lift on Senger Trucking's trailer from Erie to a job site in Fairview. No compensation was discussed at the time the agreement was made, although Ferrick Excavating testified that if a bill had been sent by Senger Trucking it would have been paid. Senger Trucking's agent, Richard Senger, the owner's nephew and employee, drove the trailer carrying the equipment, and an employee of Ferrick Excavating, Dennis Herman, rode in the trailer, accompanying Senger. At trial the parties gave conflicting testimony as to instructions on which route to take from Erie to Fairview. In the course of the journey, Senger drove the trailer under a viaduct which was not high enough to allow the machinery on the trailer to pass through, and the equipment was damaged. A jury returned a verdict of $30,500 in favor of Ferrick Excavating.

[ 315 Pa. Super. Page 73]

At the conclusion of the trial, the court charged the jury on negligence, as follows:

The legal definition of negligence is this: Negligence is the want of due care. It is the want or lack of that due care which a reasonable person would exercise under similar circumstances. Now, has the plaintiff -- has Ferrick proved to you that the Sengers did anything that a reasonable person would not have done under like circumstances or that Senger did not do something that a reasonable person would have done under like circumstances or did something that a reasonable person would not have done under like circumstances, then Senger would be negligent (N.T. 288, 289).

The jury also received special interrogatories, which were answered as follows:

Question No. 1: Do you find that the defendant, Senger Trucking Company, was negligent:

Yes X No ___

Question No. 2: If your answer to Question No. 1 was "Yes", was such negligence a proximate cause in bringing about Ferrick Excavating and Grading's damages?

Yes X No ___

Question No. 3: Was the plaintiff, Ferrick Excavating and Grading, ...


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