DocketNumber: Appeals, 76 to 89 and 94 to 97
Judges: Maxey, Drew, Linn, Stern, Patterson, Stearns
Filed Date: 5/26/1947
Status: Precedential
Modified Date: 10/19/2024
This is an action in trespass by Trustees of Priscilla Rebekah Lodge No. 266, Trustees of Lake Side Lodge I. O. O. F. No. 1111, Ola Hauck, executrix, substituted for Olin G. Hauck, and Ferdinand O. Niebauer, against Motor Age Transit Lines, Inc., appellant in appeals Nos. 80, 82, 84, 86 and 87, Lyons Transportation Company, Inc., appellant in appeals Nos. 76, 77, 78 and 79, Direct Transportation Company, appellant in appeals Nos. 94, 95, 96 and 97, and Donald H. Thomas, appellant in appeals Nos. 81, 83, 85, 88 and 89, to recover property damage resulting from a fire occasioned by a collision of two tractor-trailers. A jury returned a verdict of $26,665.46 in favor of appellees and against all appellants. Said verdict represented the stipulated damages. These appeals are from the judgment of the court below dismissing appellants' respective motions for a new trial and for judgment non obstanteveredicto.
Considering the evidence in a light most favorable to appellees, and giving them the benefit of all reasonable inferences and deductions to be made therefrom (Ashworth v.Hannum,
Thomas, called by appellees as their witness, testified that at about 2:30 A. M. on May 24, 1944, he approached the intersection of Route No. 98 and Route No. 20; that he came to a complete stop; that he then traversed three-quarters of the intersection when he realized he should have turned right on Route No. 20; that he proceeded ahead so that his tractor was about 55 feet north of the north curb line of Route No. 20; that he stopped, looked to the east, the direction from which Direct-Lyons was coming, saw no approaching traffic and began to back his truck when the collision occurred. Immediately after the collision, the rear portion of the Motor Age trailer was 15 to 20 feet north of Route No. 20, the left front and rear wheels thereof being over the west curb line of Route No. 98. The tractor was facing diagonally across said highway with the front *Page 208 portion thereof near the center. The front of Direct-Lyons' trailer was close to the rear portion of the Motor Age trailer. The Lyons trailer was north of the intersection, facing in a northerly direction and diagonally across Route No. 98.
There is ample evidence to sustain verdicts against all appellants. From the testimony of Thomas, a jury could find that both he and his employer, Motor Age, were negligent in that Thomas failed to use reasonable care in backing onto a through highway (Gaskill v. Melella,
Asserting that Direct was an independent contractor, Lyons contends that the trial judge erred in charging the jury that if it found that Reed, the driver of Direct's tractor, was negligent and his negligence was a contributing cause of the accident, Lyons was liable as a matter of law. Direct contends that the trial judge erred in refusing to strike out testimony regarding skid marks and gouges in the highway, asserting that they were not properly identified. Motor Age and Thomas contend that the trial judge erred in admitting testimony of Ola Hauck and in its charge with regard thereto.
"If specific conduct, in one view, may be construed to be lawful, and in another, to be unlawful, the lawful construction shall be adopted: Rau v. Wilkes-Barre E. R. R. Co.,
Direct's contention that the court below erred in refusing its motion for judgment non obstante veredicto for the reason that Lyons alone had the sole power of control over Reed cannot be sustained. "Where . . . it is not entirely clear who was the controlling master of the borrowed employe, and different inferences in that regard can fairly be drawn from the evidence, it is for the jury, not the court, to determine the question of agency": Dunmire v. Fitzgerald,
The trial judge did not err in refusing to strike out testimony concerning skid marks and gouges in the highway. These marks were newly made and led directly to the Lyons trailer. The inference that they were made by the Direct-Lyons tractor-trailer, coming from the east, is a highly probable one and not mere conjecture. Cf. Hoover v. Reichard,
It is contended that the testimony of Ola Hauck was clearly incompetent and erroneously admitted. She testified that between 2:30 and 2:45 A. M., on the morning of the accident, she was awakened by a truck which passed her home.1 Her bedroom was located between 900 and 1,000 feet from the scene of the accident. She heard the meshing of gears and "they made a grinding, meshing noise" as the truck passed her home and this meshing of gears continued until she heard a crash.2 A motion *Page 211 to strike out this testimony for the reason that the witness did not identify the truck was refused. Regarding this testimony, the trial judge stated to the jury: "Mrs. Hauck, the widow of one of the plaintiffs . . . was called. She says she sleeps on the north side of her house, which is 900 to 1000 feet . . . south of Route 20 on Route 98; that she was awakened by a vibration noise of a tractor and trailer proceeding in a northerly direction; that there was a noise from the attempt of the meshing of the brakes which continued from the time she woke up until the point of crash.
"This testimony was taken in connection with the testimony of Mr. Tingley who was just 400 yards, or thereabouts, back of this truck prior to its reaching the intersection. He states the truck was going about 35 or 40 miles an hour but, although the entire testimony is for you, we will mention that he states, 'It was a matter of seconds from the time I saw the tail-light on his outfit until I saw the flash of fire.' . . . So we would say their testimony would be important only in connection with the story of Thomas to the effect that he stopped, proceeded to the center, went through, stopped and was about to back up. We do not say whether or not they are inconsistent but it will be for you to say whether, under the testimony of these witnesses, all of whom are for you as to credibility, the testimony of Thomas and the testimony of Mrs. Hauck could be reconciled on whether or not it indicates something to you in connection with the other facts and circumstances as you have them."
The court en banc, dismissing Motor Age's motion for judgmentnon obstante veredicto, said, with regard thereto: "This testimony [of Olga G. Hauck] tends to *Page 212 contradict the story of Thomas that after proceeding entirely through the intersection he stopped and was about to back into the highway but had not done so when struck by the other vehicle. Mrs. Hauck could not testify that the truck she heard was that which belonged to Motor Age, but its identification was furnished by Mr. Tingley who testified that he came up behind a Motor Age truck on route No. 98 and followed behind, noting its tail-lights . . . Tingley's testimony and that of Mrs. Hauck were so corroborative, especially in view of the time element, that the jury was entitled to the information they gave for the purpose of determining the circumstances under which the actual collision took place."
Whether this testimony was properly admitted need not be determined. Certainly it was remote, vague, and unsatisfactory, evidencing only the noise of a passing motor vehicle at 2:30 o'clock in the morning by an interested plaintiff witness, aroused from sleep in an enclosed bedroom a distance of 1000 feet from the scene of the collision. She did not see the motor vehicle from which the noise came and, therefore, was unable to identify it or estimate its speed. Fitzgerald v. Penn TransitCompany,
Judgment affirmed.
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