Hastie, Ganey and Seitz, Circuit Judges.
The appellant is here appealing from that portion of an order entering judgment in favor of the plaintiff and against the defendant, Borandi.
This was an action by Deane M. Corbett, administrator of the estate of Philip Kripitzer, against Joseph Borandi, individually, and trading as Joseph Borandi Garage. In turn, Joseph Borandi brought on the record James Freeman and Sears, Roebuck & Company, a corporation, as third-party defendants.
The subject matter of the suit concerns itself with an action under the Pennsylvania Wrongful Death*fn1 and Survival*fn2 Statutes to recover damages for the death of the decedent, Philip Kripitzer, who was struck by an automobile owned and operated by James Freeman, one of the third-party defendants, under the following circumstances.
On January 28, 1964, the third-party defendant, James Freeman, brought his automobile, a 1958 Cadillac sedan, to the Borandi Texaco station in order to have the car inspected, to which place he also had taken the car for inspection previously. Freeman pulled his car in on the floor and asked the mechanic to check the accelerator by reason of the fact that it had stuck the day before when his wife was using the car. He testified that the mechanic nodded his head when he told him to check the accelerator. During the progress of his work he stopped and another mechanic, Ehrlich, came in and completed the examination of the car. Freeman gave him his ownership card and when he asked for the sticker he was told to go to Verona Boulevard to get it and when he questioned this manner of proceeding, he was told that this was the procedure. At no time during the examination was the car road tested as it never left the gasoline station except for the trip to secure the sticker. He drove about four miles and came to the Borandi Garage, drove into the yard in front of the garage, stopped the motor, applied the brakes and put the car in neutral. At this time he was approached by an attendant and was asked "Are you Freeman?" and when advised that he was, the attendant got into the car and placed the sticker on it. The attendant was later identified as one Edward R. Eyler, Jr. It was getting dark and after the sticker had been placed on the car, he told him "You are on your way." Freeman's car was facing Borandi's parking lot and he got into the car and noticed that Eyler was talking with the decedent, Kripitzer, as they were walking along the side of the car. He "cranked" up the car -- turned on the switch -- and then placed his foot on the accelerator and it went right down to the floorboard which opened the throttle the whole way and the car went at full speed straight ahead striking Kripitzer who had been standing some four or five feet in front of his car. He was carried on the hood, across the road where the car struck another car as it veered to the right and Kripitzer fell off and the car continued across Verona Boulevard through a pile of snow and ran into an embankment where it stopped. Freeman testified that he put very little pressure on the accelerator when it went right down to the floorboard.
It was later disclosed that one Boyle had called Eyler, a clerk at the garage, and told him that Freeman would be there in a short time and that he was to place the sticker on his car which, as indicated above, he so did. He testified that the decedent, Kripitzer, had no chance to get out of the way as the car had started out at such a high speed. He also testified that he was told, as nearly as he could remember, that Joseph Borandi told him the name of the inspector who checked the car was Edward Quinette, who was an inspector employed by Borandi. However, Mr. Quinette testified that he never inspected the car and, as a matter of fact, he never even saw the automobile and, accordingly, knew nothing of the transaction whatsoever.
Freeman had testified that after the accident Ehrlich had told him not to mention the accelerator even though Freeman, as has been stated, had earlier advised the mechanic before the inspection that the accelerator had stuck on several occasions before and as late as the day before.
One of the requirements of the rules promulgated by the Bureau of Traffic Safety under the direction of the Secretary of Revenue of Pennsylvania provides that a car, before it can be approved as properly inspected, must be road tested.
As indicated, the witness, Freeman, testified that he had directed the inspector at the gasoline station to check on the accelerator and that the car was never road tested and this was one of the basic negligent acts alleged on the part of the plaintiff.
On behalf of the defendant, one Roeschenthaler was called who testified he was not fully self-employed, but that he was "working for South Hills Movers as a mechanic and driver there, and I do appraising part time." Also, that he was an independent contractor doing appraisals and claim adjusting work for insurance companies, including Erie Insurance Company, and was paid on an individual basis for his time. In this instance, he was paid $28 for his investigation and $10 an hour for preparing his report and testifying. He further stated that he checked on the car on January 29, 1964, when he was "requested to check the Freeman vehicle" at Sandy Creek Garage, known as Young's Garage. He was also instructed to check a stuck accelerator. He obtained a flashlight from the proprietor, Mr. Young, and examined the accelerator pedal, which he could see very well, and he found that if pushed freely to a point 5/8 to 7/8 of the distance to the floor, it would work well and a little further on you could feel it pulling and then it snapped full open and it would leave your foot and just automatically go to the floorboard. On the 29th of January, when he made his first investigation, he could not get the hood up to look inside, as the linkage, that is the latch holding the hood down, was locked due to the accident. However, on the 31st, when he went to make a further examination, he found the hood had been raised and that the air filter was missing. He discovered that the return spring on the accelerator could accelerate normally if the pressure had been applied from 5/8 to 7/8 the way down and then, as indicated, snapped automatically to full throttle. He said this was due to the fact that the return spring was hooked in the wrong position, that is from the rear of the carburetor linkage to the rear or fire wall of the car, when it should have been hooked to the oil filter leg in the front portion of the car. He further testified that with the air filter in place, you could not readily see the return spring, as it would only be visible by taking the air filter off if you really wanted to see it completely. He further testified that it was unnecessary to road test the car and that a station inspection by a competent mechanical inspector would not have revealed the wrong position of the return spring attached to the accelerator, as this was not a part of the requisite inspection which was necessary to secure a sticker. All of this investigation which he did was without the knowledge of defendant, Borandi.
Accordingly, the issue is drawn for the jury as to whether the car should have been road tested as testified to by the plaintiff's witnesses and the accelerator checked and the testimony of Roeschenthaler who said it was not necessary to road test the car and with the air filter in place it was not possible to see the return spring, as the air filter had to be removed in order to get at the same and, accordingly, while he admitted the snapping automatically of the accelerator, as indicated above, after it had reached a position 5/8 to 7/8 from the floor, this could not be revealed by inspection. Therefore, Roeschenthaler's credibility was a paramount issue in the case since if he was believed, there would be no liability on the part of Borandi, the defendant. He stated flatly that if the car had been road tested on January 28, 1964, it would not have revealed the defect in the accelerator system since up to 5/8 to 7/8 of the way down the car ...