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SEVITCH v. DEANGELO (ET AL. (05/22/50)

May 22, 1950

SEVITCH, ADMRX.,
v.
DEANGELO (ET AL., APPELLANT)



Appeal No. 146, Jan. T., 1950, from judgment of Court of Common Pleas No. 4 of Philadelphia County, March T., 1949, No. 1457, in case of Josephine Sevitch, Admrx., Estate of Francesco Ferrante, also known as Frank Ferrante, Deceased, v. George DeAngelo et al. Judgment affirmed.

COUNSEL

Michael A. Foley, for appellant.

Louis Pokras, with him Fred C. Gartner and Hyman A. Guth, for appellee.

Before Drew, C.j., Stern, Stearne, Jones and Bell, JJ.

Author: Drew

[ 365 Pa. Page 65]

OPINION BY MR. CHIEF JUSTICE DREW

This appeal is from a judgment awarding $3500.00 to the personal representatives of deceased as damages for the loss suffered as a result of his accidental death following a collision between defendants' truck and a street car. The court below dismissed defendants' exceptions to the findings of the trial judge, sitting without a jury, and entered judgment thereon for plaintiff.

Deceased was employed by the Philadelphia Transportation Company as a member of a welding crew. At 9:00 A.M. on October 1, 1948, he and another employe were working on street car tracks a few feet west of the intersection at 19th and South Streets in the City of Philadelphia. These two streets are one way thoroughfares, have an identical width of 26 feet and are both traversed by single streetcar tracks. At the point of intersection South Street, a westbound avenue, is crossed at a right angle by 19th Street which runs in a southerly direction. Deceased and his companion were working on the north rail of the South Street track, some four or five feet west of the west rail of the 19th street track. Their welding machine stood in the south cartway of South Street, west of 19th, making it necessary for all vehicular traffic to use the north cartway of that street.

Defendants' truck, as it approached the intersection from the east, was moving down the middle of South Street. When it was approximately 30 feet from the east curb line of 19th Street, a traffic light, which had

[ 365 Pa. Page 66]

    been green in the truck driver's favor, changed to amber and then a moment before the trunk entered the intersection, turned red. Defendant driver, proceeding through the red light, turned his truck into the north cartway in an attempt to avoid the deceased and his fellow worked and, in so doing, collided with a streetcar moving south on 19th Street. The truck was struck on the right side of its rear axle with such force that it was turned about and came to a stop approximately five feet west of the west curb line of 19th Street with its right side paralleling the southbound tracks of that street. No eyewitness testified to having see the truck hit the welding machine or the deceased. However, there was evidence that a puff of flame and smoke flared up briefly from the vicinity of the welding machine and, after the collision, the deceased was found lying in the south cartway of South Street, ten or fifteen feet from where he had been working. His shoes had been knocked off and were found some distance apart in the middle of the street and between the tracks on South Street. Defendant truck driver testified that he did not know whether he had struck deceased or not. Deceased was removed to a hospital where he subsequently died of multiple injuries to his head and body.

Defendant has admitted his negligence but denies that there is sufficient evidence to support a finding that deceased's injuries were the result of that negligence. Although there was no direct testimony offered by plaintiff to show that defendants' truck struck the deceased the lack of such evidence is not fatal. For as this Court said in Tucker v. Pittsburg, Etc., Ry. Co., 227 Pa. 66, 68, 75 A. 991, in which case a passenger was run over, unbeknown to any witnesses, by the train from which he had alighted: "No one witnessed the occurrence, and, therefore, ...


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