Before BIGGS, Chief Judge, and FORMAN and GANEY, Circuit Judges.
Plaintiff Walter Sowizral (hereafter appellant), a citizen of Canada, has appealed the verdict of a jury in his negligence suit that favored defendant Adele M. Hughes (hereafter appellee), a citizen of Pennsylvania*fn1 The essence of his complaint alleged that while sitting in a non-moving automobile, he suffered injuries as a result of being struck by an automobile negligently operated by appellee. She answered denying negligence. At the trial a jury returned a verdict favoring appellee. The United States District Court for the Middle District of Pennsylvania, in an unreported memorandum, refused a motion for new trial.
The gist of appellant's argument here is that the charge of the District Court was fundamentally incorrect. Appellee asserts that not only was the charge correct, but that appellant made no specific objections at the time of trial to the points he now raises.
"The testimony in this case," the District Court stated in its memorandum on the motion for a new trial, "presented a mass of conflict, much more than occurs in the ordinary case." After resolving all reasonable inferences from the evidence most strongly against the appellant, as required at this stage*fn2, the pertinent facts are as follows:
Appellant and his wife had decided to drive in his automobile from their home in Toronto, Canada to Florida for a vacation. They were to be accompanied by their friends, Walter Wells and his wife, also of Toronto. Accordingly, on February 12, 1959, the parties left Toronto in appellant's car driven by him. They proceeded on that day as far as Duncannon, Pennsylvania, where they put up for the night at a motel.
The journey was resumed early the following morning, February 13, 1959. Between 5 and 6 a.m., they were already traveling south on Route 15. Because of the darkness, rain, cold and the fear "that it would start to freeze", appellant drove at about 15 to 20 miles an hour. No ice, according to witnesses for appellant was on the road.
In discussing at that time the existing traveling conditions, those in appellant's automobile expressed the thought that daylight might bring better visibility and weather. Furthermore, appellant testified that he had not felt "like driving in that weather so early in the morning." Appellant turned the car around to face north and parked on the eastern shoulder of the highway, off of the traveled highway. He wanted the members of the group to make up their minds whether to go back to the motel from where they had departed that morning or proceed to Florida.
Meanwhile, at about 4:50 a.m. of the same day, appellee, at her home in Duncannon, received a telephone call from her husband requesting that she pick him up at the railroad station in Harrisburg, Pennsylvania, which was about 15 miles distant. Appellee left soon after the call.
It was damp, cold, and dark, as she left her home. After stepping back and forth on the pavement to ascertain if there were freezing conditions, she decided there were none.
Adjacent to the home of appellee is a hill which presents difficulties for drivers. Thus, appellee testified, because it was cold and raining she applied her brakes while driving her car down the hill to see if there were a sliding condition. According to her testimony, she tested the road surface for ice three more times before the accident without discovering any.
As appellee approached the scene of the accident on Route 15, about six miles from her home, she was traveling 35 miles per hour. There was no one on the roadway, but it was very wet and raining, she stated. In addition, the lights of her car were on as it was still dark at this time in the early morning.
Appellee testified that as she proceeded on Route 15, "I felt a movement in the back of the car." Her first reaction was to decelerate. The car, however, slid toward the west or mountain side of the highway.Yet, the car came out of the skid without hitting the mountain.
Appellee then observed on her side of the road the rear end of a truck "backed into the mountain" with the front over "half of the road." The parked car of the appellant on the other side of the road was also observable.
Her car then immediately went into another skid and crossed over the center line of the highway toward the east or river side. It thereupon entered upon the eastern shoulder and struck appellant's motionless automobile. Appellant testified that his car's motor was running, its headlights were on, and it had been on the shoulder for only two or three minutes prior to the accident.
Before appellee could stop her car, it had gone southwardly on the wrong side of the highway about "12, 15 feet" or "100 to 150 feet" past the car of the appellant, according to different parts of appellee's testimony*fn3 Since appellee was unhurt and on the wrong side of the highway, she drove in low gear over to the west side and parked there.
Appellee testified that after pausing for a minute to compose herself, she saw two men appear - appellant and Mr. Wells. The testimony of Mr. Wells indicated that only he went back to the car of appellee, while the appellant remained seated in his car.
Appellee further testified:
"A. They had walked up the highway. They were very courteous and kind and said - I started to get out of the car; as I opened the door - 'Lady, be careful. This is like a sheet of glass', and as I stepped out they took my hand, and I said 'So right you are.'"
The parties thereafter exchanged identifications and walked to the car of appellant. Appellee then invited both couples to her home, which they accepted. A truck drove slowly by the scene of the accident before the five people left for the home of appellee. Appellee asked ...