256 F2d 332 Wilson v. Nu-Car Carriers

256 F.2d 332

Marian J. WILSON, Administratrix of the Estate of Robert E. Wilson
v.
NU-CAR CARRIERS, Inc., Appellant.

No. 12567.

United States Court of Appeals Third Circuit.

Argued June 6, 1958.

Decided June 16, 1958.

F. Brewster Wickersham, Harrisburg, Pa. (Metzger, Wickersham & Knauss, Richard Wickersham, Harrisburg, Pa., on the brief), for appellant.

Spencer R. Liverant, York, Pa. (Morris M. Terrizzi, Huntingdon, Pa., Markowitz, Liverant, Rauhauser & Kagen, York, Pa., on the brief), for appellee.

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

PER CURIAM.

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1

This is an action under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601 et seq., for damages for the death of the plaintiff's decedent in a collision between the bakery truck which he was driving and a tractor and trailer owned by the defendant and driven by one of its employees. The collision occurred on U. S. Highway 22 east of McVeytown in Mifflin County, Pennsylvania. The jury rendered a verdict in favor of the plaintiff. Motions for a new trial and for judgment n.o.v. were denied and this appeal followed.

2

All the contentions which the defendant now makes, save one, were fully considered and properly disposed of in the opinion filed by Judge Follmer in the district court in disposing of the motions for a new trial and for judgment n.o.v., 158 F.Supp. 127. We are in full accord with what is said in his opinion and we need add nothing to it. The only other contention of the defendant is that the trial court erred in instructing the jury upon the presumption of the Pennsylvania law that a person killed in an accident was exercising due care for his own safety. We have examined the trial judge's instructions in this regard but find no error in them.

3

The judgment of the district court will be affirmed.