Appeal, No. 41, March T., 1953, from judgment of Court of Common Pleas of Fayette County, Sept. T., 1947, No. 244, in case of Mary Polando, Exrx., Estate of Edith Polando, deceased, v. Blue Ridge Transportation Company. Judgment reversed; reargument refused July 21, 1953.
Wade K. Newell, for appellant.
Henry R. Beeson, with him Higbee, Lewellyn & Beeson, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Edith Polando, 33 years of age, single, living in Waltersburg, Fayette County, was employed as a waitress in Elks Park, Henry Clay Township, also in Fayette County. She worked every day but Monday. On the afternoon of Monday, March 25, 1946, she visited Uniontown, six miles distant from her home, to shop with her sister Mary Polando and to call on a friend, Mrs. Corrado. At the end the day, Mrs. Corrado accompanied her to the West Penn Bus Terminal where she was to take the 9:40 p.m. bus for her home. The bus, however, was late and did not arrive until 10:20. She boarded it and occupied the first seat, across the aisle from the bus driver, Eddie Eakle, with whom she had a speaking and friendly acquaintance.
Because of his tardy arrival at the terminal, Eakle tarried only 5, instead of the usual 15 minutes, and upon leaving the terminal immediately went into high speed, explaining to Miss Polando that he had "to make up time." It was a clear night and the weather dry as the bus, now travelling northwardly on Route 51,
approached the Vance Mills Road which crosses this Uniontown-Pittsburgh highway. Within some 500 feet of the intersection the bus swung to the left to pass an automobile travelling in the same direction. While the bus was still on the southbound side of the highway, two cars approached from the opposite direction, one seeking to pass the other. The overtaking car (which later turned out to be a Ford) was travelling on its left side of the highway and was moving across to the southbound lane to get back to its right side of the road. At the same time the bus driver was trying to get over to the northbound lane. Since both vehicles were endeavoring to reach their respective proper lanes over the same path of travel, the resulting head-on collision was inevitable. Of the occupants of the Ford car one was killed and several others injured. In the encounter the bus lost its left front wheel, its front axle was bent and it suffered other damages. Its momentum, however, was such that it continued to travel forward until it finally crashed against an embankment some 680 feet beyond the first collision.
Edith Polando in the front seat was twice thrown with violence against the front of the bus, the windshield and to the floor; once at the time of the collision with the Ford and the second time when the bus hit the embankment. She brought suit against the bus company for injuries sustained in the double crash, and at the trial which took place in April, 1949, the jury awarded her a verdict of $25,000. The defendant moved for a new trial and while the motion was pending, the plaintiff died on August 13, 1950.
After Edith Polando's death, an autopsy was performed and the cause of death was said to be "hypernephroma or renal tubular adenocarcinoma, with multiple metastases throughout both kidneys, both adrenal
glands, the left upper pulmonary lobe, and the cerebrum; complicated by an acute lobar pneumonia in the left upper pulmonary lobe," summed up in the proceedings below as cancer. On this finding a new trial was ordered and Mary Polando, sister of the decedent, and executrix of the estate, was substituted as plaintiff.
At the second trial where the testimony of the deceased Edith Polando was read to the jury, the trial judge instructed the jury that if they found for the plaintiff they could only award damages in the sum of 6 1/4. The jury returned such a verdict. The plaintiff moved for a new trial which was refused. The ...