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CHARLES W. HAWTHORNE v. DRAVO CORPORATION (04/22/83)

filed: April 22, 1983.

CHARLES W. HAWTHORNE, SR., ADMINISTRATOR OF THE ESTATE OF RICHARD DANIEL HAWTHORNE, DECEASED, APPELLANT,
v.
DRAVO CORPORATION, KEYSTONE DIVISION, V. BOROUGH OF INDUSTRY



No. 157 Pittsburgh, 1982, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Beaver County, No. 1875 of 1976.

COUNSEL

John Albert Miller, Beaver, for appellant.

Oran W. Panner, Beaver, for Dravo, appellee.

Bernard J. McAuley, Pittsburgh, for Borough of Industry, appellee.

Cercone, P.j., and Wieand and Beck, JJ.

Author: Wieand

[ 313 Pa. Super. Page 438]

Richard D. Hawthorne was drowned when the vehicle which he permitted to drift into the shallow waters of the Ohio River suddenly plunged into deep water because of dredging operations which had been conducted unexpectedly close to the river's edge. The administrator of his estate commenced an action in trespass against Dravo Corporation, which had conducted dredging operations pursuant to permit granted by the Pennsylvania Department of Environmental Resources (DER).*fn1 After the plaintiff's evidence had been presented, the trial court entered a compulsory

[ 313 Pa. Super. Page 439]

    non-suit, which the court en banc refused to remove. Plaintiff appealed.*fn2 We reverse and remand.

When we review the entry of a compulsory non-suit, this "'Court must accept as true the facts presented by appellant, read the evidence in the light most favorable to the appellant and give the appellant the benefit of all reasonable inferences and deductions arising from such evidence. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 372 A.2d 736 (1977). When the trial court is presented with a choice between two reasonable inferences, the case must be submitted to the jury. Paul v. Hess Bros., Inc., 226 Pa. Super. 92, 312 A.2d 65 (1973).'" Lavely v. Wolota, 253 Pa. Super. 196, 199, 384 A.2d 1298, 1300 (1978), quoting Norton v. The City of Easton, 249 Pa. Super. 520, 523-524, 378 A.2d 417, 419 (1977). Accord: McNally v. Liebowitz, 498 Pa. 163, 170, 445 A.2d 716, 719 (1982); Kline v. Ball, 306 Pa. Super. 284, 285, 452 A.2d 727, 728 (1982); Barney v. Foradas, 305 Pa. Super. 404, 407, 451 A.2d 710, 712 (1982); Treadway v. Ebert Motor Co., 292 Pa. Super. 41, 46, 436 A.2d 994, 997 (1981); Duke and Co. v. Anderson, 275 Pa. Super. 65, 66-67, 418 A.2d 613, 614 (1980); Gill v. McGraw Electric Co., 264 Pa. Super. 368, 378, 399 A.2d 1095, 1100 (1979).

The record, when examined in the light most favorable to appellant, discloses that at or about midnight on November 11, 1974, the decedent drove a borrowed vehicle down Canton Street, in the Borough of Industry, Beaver County, to the edge of the Ohio River at a place known as Maude's Landing. There, he, his girlfriend, Betsy Wardle, and two other passengers sat and looked at the lights on the opposite

[ 313 Pa. Super. Page 440]

    side of the river. The night was dark and foggy, however, and Betsy made several requests that they leave. Appellant's decedent acceded to Betsy's requests and began to shift the vehicle's standard transmission into reverse. As he did so, the vehicle drifted forward a short distance and suddenly plunged into deep water. Betsy and the two additional passengers escaped by exiting the vehicle through a rear ...


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