Opinion
May 24, 1938.
June 17, 1938.
Negligence — Automobiles — Evidence — Incontrovertible physical facts — Vehicles proceeding in opposite directions — Conclusion.
In an action of trespass in which there was conflicting evidence as to the manner in which the accident occurred, it was held that the doctrine of incontrovertible physical facts was not applicable and that the question as to how the accident happened was for the jury.
Argued May 24, 1938
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.
Appeal, No. 193, March T., 1938, from judgment of C. P. Allegheny Co., July T., 1936, No. 226, in case of Alma E. Czarniecki v. Jesse C. Stewart Company. Judgment affirmed.
Trespass for personal injuries and for wrongful death. Before T. M. MARSHALL, J.
Motion by defendant for judgment on the whole record refused. Defendant appealed.
Error assigned was refusal of motion for judgment.
James J. Burnes, Jr., with him Gustav M. Berg, for appellant.
James J. Lawler, for appellee, was not heard.
According to appellee's testimony, appellant's truck was traveling on the left side of the road, without lights. As it neared appellee's approaching automobile, proceeding in the opposite direction, the truck swerved to the proper side of the road. The rear of the truck struck the front of appellee's car obliquely.
Appellant contends that the doctrine of incontrovertible physical facts refutes appellee's story of the accident, the reason being that a collision between two vehicles proceeding in opposite directions would cause them, not to wedge together, with appellee's car being pulled completely around, as was here alleged, but to recoil. Obviously this is simply an ordinary factual question relating to the manner of the particular accident which the jury must decide. The accident could have occurred as appellee relates, and it is therefore a jury question. The doctrine of incontrovertible physical facts has no application here.
Judgment affirmed.