183 A. 777 | Pa. | 1936
Argued January 9, 1936. This action of trespass arose out of an accident on the Roosevelt Boulevard, between Welsh Road and Grant Avenue, in the City of Philadelphia. At this point the boulevard runs generally east and west and for a certain distance there are two driveways, one for eastbound traffic and one for westbound traffic. Each driveway is thirty-four feet wide. Between them is a grass plot twenty-eight feet in width. Near the place of the collision *371 this plot narrows until it ends in an arc of thirteen feet. From there eastward there is a single road forty feet wide. The accident took place at approximately 2 p. m. on September 17, 1933. The day was clear. The minor plaintiff, a young woman of twenty years, was a guest in a car that was proceeding in a westerly direction, approaching the arc where the highway divided into the two lanes of travel. The original defendant had been driving easterly in the southern lane of travel and had reached the end of the grass plot; she was in the act of executing a "U" turn around the arc of the "island" when the two cars collided. The present action was brought by the minor through her parents as next friends and by the parents in their own behalf to recover damages for personal injuries to the minor. Alleging that the driver of the car in which the minor plaintiff was riding, and also that the owner of the car, his mother, who was a passenger at the time of the accident, were responsible for the accident, the original defendant issued writs of scire facias to summon both as additional defendants. The jury returned a verdict of $20,000, for the minor and $415.35 for her mother, the father having died during the interim between the commencement of the suit and the time of trial. The verdict was against all the defendants. Subsequently, plaintiffs filed a remittitur of all sums in excess of $10,000, and judgment was entered accordingly. Defendants have taken the present appeals, assigning as error, inter alia, the refusal of their respective motions for judgment n. o. v.
The testimony is conflicting. As the record stands our review must be based upon the aspects of the testimony most favorable to plaintiffs. We cannot escape the conclusion that the jury was entitled to find that both drivers were negligent; that the negligence of each contributed to the accident; and that if either had exercised due care the collision would have been averted.
The testimony of plaintiffs and that of theadditional defendants is to the effect that the original
defendant *372
attempted an abrupt "U" turn around the end of the grass plot while she was going twenty miles an hour and when the other car was but twenty-five feet away and approaching at a speed of thirty miles an hour; that the right front of the original defendant's car struck the left rear of the additional defendants' car with such force that the latter car was thrown completely off the road and overturned. The original defendant's view was unobstructed. The jury properly found that heedless of consequences she went forward into a situation obviously dangerous. Under the circumstances, her negligence was a legitimate inference: Romanowski v. Morganstein,
We are also convinced of the propriety of the jury's finding with respect to the liability of the additional defendants. The original defendant testified that when she looked to the east prior to making her turn, the additional defendants' car was at least 250 feet away; that she proceeded slowly and cautiously, twice stopping to look for approaching vehicles; that she had completed her turn, having covered practically the entire width of the westbound lane; that in so doing she traveled thirty-five feet from the end of the grass plot and that at the moment of the collision her car had been "straightened out" and was headed westerly; that the additional defendants' car suddenly came up between her car and the curb, at which time "it apparently struck something, possibly the curb," causing its left rear to be thrown back into the right front of her car. The additional defendant driver himself testified that he saw the original defendant about to turn when he was twenty-five feet away, that he could have stopped within fifteen feet, but that he did not apply his brakes. This driver should have been cognizant of the imminence of a collision and *373
should have taken appropriate action to avoid it. His failure to do so justified the jury in imputing negligence to him:Mathiasen v. Brennan,
It is contended by the additional defendants that the "incontrovertible physical facts" negative any finding of negligence on their part. This contention is founded on the assumption that the additional defendants' testimony as to how the accident happened was incontrovertible. No fact based onoral testimony in a trial ever possesses the character of legal incontrovertibility until it receives the imprimatur of a jury's acceptance. See Ferguson v. Charis,
In behalf of the additional defendants it is further contended that the court below should have entered judgment n. o. v. in their favor because of the fact that the writs of scire facias whereby they were summoned alleged that they were solely liable, whereas the jury's verdict established that the original defendant was also responsible. They argue that the writ of scire facias is not only a method of bringing a party into court, but that it is also a pleading and must, therefore, state a good cause of action: Nunamaker v. Finnegan,
Complaint is finally made that the verdict is excessive. In addition to the necessary hospitalization and the consequent loss of earnings which the minor plaintiff was required to undergo, it also appears that the injuries suffered are of a permanent and lasting nature. The young victim of this accident sustained multiple fractures of the pelvis and the bones were dislocated, resulting in the shortening of one leg. From time to time she suffers from pain which has its origin in the injuries received. The inlet or top of the pelvis has been distorted. There was testimony that normal child-bearing by her would be impossible and a Cæsarean operation would be necessary at every birth. In the light of our well-established rule that the amount of a verdict will not be reviewed unless "so grossly excessive as to shock our sense of justice and to indicate a clear abuse of discretion on the part of the court below (Schumacher v. Reading Transportation Co.,
All the assignments of error are overruled. The judgment is affirmed.
