Ness v. Males

Henderson, J., delivered the opinion of the Court. These appeals are from judgments in favor of the appellees for damages arising out of a collision between an automobile and a tractor-trailer on the Old York Road. The case was tried before a jury and the sole questions raised are whether the Court erred' in refusing to direct verdicts for the defendants or to grant motions for judgments n.o.v. The appellants contend that there was no evidence legally sufficient to show that their negligence, if any, was the proximate cause of the accident. The appellants contend that the sole proximate cause of the accident was the failure of the appellees to yield the right of way; the appellees contend that the sole proximate cause was the failure of the appellants to keep their tractor-trailer to the right of the center of the highway.

Old York Road is a boulevard or through highway, the paved portion being 18 feet wide, running generally north and south. The appellants entered it from Gray- ²³⁷ stone Road, which intersects it to the west but “dead-ends” there. Males, who was driving the automobile, made a proper stop at the stop sign and again before entering the paved portion. Both Mr. & Mrs. Males testified they looked to the left but saw no vehicles approaching.

Males made a left turn to go north on Old York Road. There is a hill to the north and a curve in the road, so that the visibility is only 200 feet. The speed limit at that time was 50 miles per hour on the favored highway; it has since been reduced to 30 miles per hour. It was a clear, bright day, about 7 P. M. on July 5, 1951, and the roads were dry.

Males testified that after he “got straightened out” he saw a tractor-trailer coming south around the curve, about 50 or 60 miles per hour. There was a filling station on the northwest corner, where a truck, headed south, was taking on gas, the owner, Jones, standing at its rear end, off the paved portion. Males testified that when he was 35 feet north of the intersection the rear end of the trailer “jack-knifed” and swung across the center line and struck his car about in the middle of its left side, sweeping it sideways and backwards off the paved portion to the right. His testimony as to the point of impact is strongly supported by the testimony of a state trooper who investigated the accident.

This witness testified that he found skidmarks 171 feet in length. He described the marks in this manner: “In places it was paired and in places it was one; in places it was solid and in places it was jumpy. It is a rough road. * * * In places the skidmarks hit the high places.” He fixed the point of impact by debris in the center of Old York Road. From this debris to the point where the skidmarks ended was 51 feet.

The skidmarks ended at a point a few feet north of the south side of Graystone Road. If Graystone Road is 18 feet wide (and it appears to be about the same width as Old York Road), the point of impact, therefore, would have been 33 feet north of the north side of Graystone Road. He also testified ²³⁸ that the skidmarks were entirely in the southbound line and did not cross the center line at any point. After the accident the appellees’ automobile was wholly north of the north side of Graystone Road.

The appellant Ness testified that he was driving the tractor-trailer at a speed of 35 miles per hour, and put on his brakes when he came over the crest of the hill and around the curve. He was familiar' with the intersection and knew it was dangerous because of the bad visibility. He was about 100 feet from the intersection when he saw the appellees’ car coming across in front of him at a speed of about 15 miles per hour. He put his brakes on hard; he could not pull to his right because of the parked truck.

He admitted that his tractor cleared the automobile. There was room enough to pass between the automobile and the parked truck without touching either. The tractor and trailer were 38 feet long. The extreme left rear of the trailer struck the automobile.

When he stopped the rear of his trailer was north of the south side of Graystone Road. The only other evidence bearing on the collision was that of Mr. and Mrs. Jones. Jones was the owner of the parked truck. He testified that he heard the tractor-trailer coming behind him while he was putting gas in the rear of his truck.

He said it was not coming fast but that he left the hose in the tank and jumped into the back of his truck. He saw the appellees’ car cutting around the corner. His truck was well north of the intersection and off the paved portion of Old York Road. As the trailer passed him, he saw the appellees’ car in the other lane.

The automobile left its proper lane and swerved over into the rear of the trailer. “It looked like he came over into Mr. Ness’ driveway.” Mrs. Jones, who was