Opinion
Nos. 7607, 7609.
January 31, 1941.
Appeal from the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge.
Actions by Clarence Tarbet, individually, doing business as Tarbet Trucking Company, and by Mack Rinehart, against Harry S. Thorp, to recover damages sustained in an automobile accident. From adverse judgments, 34 F. Supp. 238, defendant appeals.
Affirmed.
Raymond P. Leemhuis, of Erie, Pa. (English, Quinn, Leemhuis Tayntor, of Erie, Pa., on the brief), for appellants.
Franklin B. Hosbach, of Erie, Pa. (Hosbach Gleeten, of Erie, Pa., on the brief), for appellees.
Before MARIS, JONES and GOODRICH, Circuit Judges.
From a careful examination of the record on these appeals we are of the opinion that the learned trial judge was correct in submitting the cases to the jury. The Pennsylvania incontrovertible-physical-facts rule, upon which the appellants rely, "does not apply where there are variables or doubtful estimates or where objects are not placed with certainty". Rex et al. v. Lehigh Valley Transit Co., 330 Pa. 275, 279, 199 A. 324, 326. In Hostetler v. Kniseley, 322 Pa. 248, at page 250, 185 A. 300, at page 301, the Pennsylvania Supreme Court said: "We have frequently held that incontrovertible physical facts are never established by oral evidence as to position, speed, etc., of movable objects. Hegarty v. Berger, 304 Pa. 221, 226, 155 A. 484, and cases cited therein." The incompatibility, which the appellant stresses, between the plaintiff-driver's oral estimates of the distance between, and the relative positions of, the two motor vehicles involved in the accident and what actually happened presented matter for the jury and not a question of law for the court.
The judgments in the separate appeals at Nos. 7607 and 7609 are affirmed.