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MCCOY v. VANKIRK (05/25/54)

May 25, 1954

MCCOY, APPELLANT,
v.
VANKIRK



Appeals, Nos. 54 and 55, March T., 1954, from judgments of Court of Common Pleas of Butler County, Dec. T., 1953, Nos. 2 and 1, in cases of Harold M. McCoy, et ux. v. B. F. Vankirk; and B. F. Vankirk v. Harold M. McCoy. Judgments affirmed.

COUNSEL

Luther C. Braham and John L. Wilson, with them Galbreath, Braham & Gregg, for appellants.

Lee C. McCandless, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Musmanno

[ 377 Pa. Page 515]

OPINION BY MR. JUSTICE MUSMANNO

On April 10, 1950, an automobile owned and operated by B. F. Vankirk came into collision with an

[ 377 Pa. Page 516]

    automobile owned and operated by Harold M. McCoy. Vankirk was injured, Mrs. McCoy (travelling in the car with her husband) was injured, and both cars were damaged. B. F. Vankrik brought suit in trespass against Harold McCoy. Harold McCoy and Mrs. McCoy sued Vankirk.

The lawsuits were tried together and the jury returned a verdict in favor of Vankirk in the sum of $1850 and denied the McCoys any recovery at all. For these verdicts to be mutually consistent, the jury had to find that Vankirk was free of contributory negligence in his suit against McCoy and equally free of negligence in the suit against him by the McCoys. So as to remove all doubt on this score, the presiding judge said to the jury at the time of the rendition of the verdict: "... you could not have rendered the first verdict in favor of Vankirk if you thought he was guilty of negligence. I want you to be sure about this. If you all think Mr. Vankirk was not guilty of negligence, I want you to stand up; if that is what you mean." Whereupon the jury all rose to their feet.

At the oral argument before this Court on the appeal, counsel for McCoys practically conceded that, in the face of the juries open confirmation of Vankirkhs non-negligence, he had indeed a tight knot to untie if he expected to win the new trial for which he contended. But it does not appear, in spite of his vigorous and painstaking effort in that direction, that he was able to loosen any of the legal cords which have bound up this lawsuit into a final and irrevocable adjudication. The trial was conducted by three able and experienced lawyers (Harold McCoy being represented by one lawyer in his capacity as defendant and by another lawyer in his capacity, together with his wife, as plaintiff); the proceedings were presided over by a veteran jurist of distinguished ability;

[ 377 Pa. Page 517]

    and the issue, which was a simple one, was decided fairly and ...


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