No. 1073 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Luzerne County at No. 4817 of 1977. No. 1074 Philadelphia 1982, Appeal from the Order of the court of Common Pleas, Civil Division, of Luzerne County at no. 4821 of 1977. No. 1075 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Luzerne County at No. 4961 of 1977. No. 2631 Philadelphia 1982, Appeal from the Judgment entered in the Court of Common Pleas, Civil Division, of Luzerne County at no. 4817 of 1977. No. 2632 Philadelphia 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Luzerne County at No. 4821 of 1977. No. 2633 Philadelphia 1982, Appeal from the Judgment of the Court of Common Pleas, Civil Division, of Luzerne County at No. 4961 of 1977.
James P. McKenna, Jr., Pittsburgh, for appellants.
Richard G. Fine, Scranton, for Destefano, appellee (at Nos. 1073 and 2631).
Thomas J. Sharkey and Joseph J. Ustynoski, Hazleton, for Leshko, appellee (at Nos. 1074 and 2632).
Joseph J. Ustynoski, Hazleton, for Sagan, appellee (at Nos. 1075 and 2633).
Spaeth, President Judge, and Popovich and Hoffman, JJ.
[ 329 Pa. Super. Page 362]
This is an appeal from the Order of the en banc Court of Common Pleas of Luzerne County, which was reduced to a judgment on August 9, 1982, denying defendants-appellants' (Richard Nelson and Safeway Truck Company's) motions for a judgment non obstante veredicto or a new trial.*fn1 We reverse.
The measuring stick against which the grant or denial of a judgment n.o.v. is to be assessed has been stated to be the following:
[ 329 Pa. Super. Page 363]
In reviewing the trial court's denial of appellant's motion for judgment n.o.v., the evidence, together with all reasonable inferences therefrom, must be viewed in the light most favorable to the verdict winners. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Kresovich Page 363} v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970); Cerino v. Philadelphia, 435 Pa. 355, 257 A.2d 571 (1969). All conflicts in the evidence, moreover, must be resolved in favor of the prevailing party. Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43 (1965); Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970); Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962). However, where the evidence is insufficient to sustain a verdict against the losing party, a court will enter judgment n.o.v. in favor of the appellant despite a verdict to the contrary. Kolb v. Hess, 227 Pa. Super. 603, 323 A.2d 217 (1974); Eldridge v. Melcher, 226 Pa. Super. 381, 313 A.2d 750 (1973).
Mike v. Borough of Aliquippa, 279 Pa. Super. 382, 388-89, 421 A.2d 251, 254 (1980). Accord McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 450 A.2d 991 (1982), petition for allowance of appeal denied October 29, 1982 [No. 447 E.D. Allocatur Docket 1982].
Viewing the evidence in a light most favorable to the non-moving party plaintiffs-appellees, the following appears of record: At approximately 6:00 p.m. on the 5th of June, 1975, Angelo DeStefano was driving a conventional tractor (meaning, the engine was out in front of the cab) pulling an empty 33-foot, flatbed trailer in a westerly direction on Interstate 80. It was not dark, and DeStefano was moving at about 45 m.p.h., on a 55 m.p.h. posted highway, because the road surface was wet. (N.T. 391)
DeStefano had just come off a bridge and could see, some 250 feet ahead, that a Cadillac had stopped on the berm of the road, just past the exit for White Haven, Pennsylvania. He slowed and, with the Cadillac about 100 feet away, applied his brakes. When he did so, however, the tractor trailer started to jackknife. (N.T. 394) At this point, he looked in his left rear mirror and saw that another tractor trailer, later determined to be driven by Richard Nelson and leased to Safeway Truck Company, "was coming up on" him. (N.T. 420) This prevented DeStefano from moving into the left lane, so he started to pull off to the right. As
[ 329 Pa. Super. Page 364]
he attempted to do so, he struck the rear of the Cadillac. This impact caused the Cadillac to veer to the left, and, in a counter clockwise motion, back onto the highway surface with the front end facing south. (N.T. 131 & 132) Before DeStefano was able to get off the highway and stop by driving up an embankment to his right, the Cadillac traveled "say sixty, seventy feet." (N.T. 189) Thereafter, the Cadillac crossed into the southerly portion of the westbound lane of Interstate 80 at an angle and was struck by Nelson's tractor trailer while in the passing lane. The two vehicles traveled for some 400 or 500 feet before coming to rest in a ditch on the right hand side of the westbound lane of Interstate 80. (N.T. 138 & 190)
The driver of the Cadillac, Charles Leshko, was killed and the two passengers, Mrs. Ann Louise Leshko in the front seat and a Mr. George Sagan in the back, survived.
The case proceeded to trial and a jury found the defendants, which included Richard Nelson and Safeway Truck Company, negligent. Post-verdict motions were denied and judgment was entered for the plaintiffs and against the defendants-appellants.
On appeal, appellants present three issues for our review,*fn2 but, because of the result reached instantly, we need only respond to appellants' complaint that the evidence (or, more appropriately, the lack thereof) warranted the entry of a judgment n.o.v.
Appellants urge that the testimony on the question of negligence was so inadequate that it should not have been submitted to the jury for resolution. Rather, they contend that Nelson, faced with a sudden emergency not of his own ...