Appeal from the Judgment entered in the Court of Common Pleas of Clarion County, Civil Division, No. 441 C.D. 1984
Keith M. Pemrick, Franklin, for appellants.
Louis C. Long, Pittsburgh, for appellee.
Tamilia, Popovich and Hoffman, JJ. Concurring Statement by Popovich, J.
[ 374 Pa. Super. Page 516]
Appellant, administrator of the estate of Mark E. Lewis, appeals judgment entered on September 3, 1987 based on the grant of compulsory non-suit against appellants.
This unfortunate action exemplifies the tragic and fully foreseeable consequences of racing on our public highways. Just before midnight on October 28, 1983, Mark Lewis agreed to pit his 1982 Pontiac Firebird TransAm against Charles Brian Miller's Camaro Z-28, by racing up a steep
[ 374 Pa. Super. Page 517]
hill on U.S. Route 322 in Clarion Township, Clarion County.*fn1 As might be expected, the race concluded, not with a winner, but instead, with a fatality, as the Camaro Z-28 became airborne, clipping off the tops of pine trees some seven feet high, finally coming to rest against a camping trailer, and the TransAm skidded and rolled up against a stone wall. Mark Lewis, the 23-year old driver of the TransAm, was ejected from the car and later died, as a result of a fractured skull and broken neck, en route to the hospital.
Appellant filed a complaint in trespass on May 16, 1984 alleging the direct and proximate cause of the accident between decedent's TransAm and appellee's Camaro to be the "careless, negligent, wanton, reckless grossly negligent" operation of the auto operated by the appellee. Appellant sought damages on behalf of the estate for loss of wages and earnings and accumulations during the natural life expectancy of the decedent, and for pain, suffering and inconvenience sustained by decedent, as well as loss of property for the damaged automobile. On behalf of the next of kin of decedent appellant sought damages for loss of his companionship and also loss of his earnings and income. The case proceeded to trial on January 27-28, 1987.
Two witnesses, Millene Childs and Lori Switzer, present with the decedent and appellee shortly before the accident, testified the two young men had agreed to a race (N.T., 1/27/87, pp. 40, 50). Switzer said the men started the race at the bottom of a hill (N.T. at 50). Trooper Morosky of the Pennsylvania State Police, who investigated the accident, described the scene as a steep inclined hill with a sharp right hand curve, containing two eastbound lanes for traffic proceeding up the hill and one westbound lane for downhill traffic (N.T. at 8). The trooper testified that as the men
[ 374 Pa. Super. Page 518]
had proceeded eastbound with Lewis in the inner lane, Miller encountered a slow-moving vehicle in the outer lane causing him to swerve to his left to avoid hitting that vehicle. The path of Lewis's TransAm was cut off by Miller, causing him to swerve left, skid and hit a stone wall. As noted above, Lewis was thrown from the vehicle and died as a result of his injuries (N.T. at 60-62). Trooper Morosky estimated the traveling speed of the two vehicles to have been 75 m.p.h. at the time of the incident, although the hill ...