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JOSEPH v. ROCHESTER MOTOR COACH COMPANY. (01/03/55)

January 3, 1955

JOSEPH, APPELLANT,
v.
ROCHESTER MOTOR COACH COMPANY.



Appeal, No. 45, March T., 1954, from judgment of Court of Common Pleas of Beaver County, Sept. T., 1951, No. 43, in case of Joseph M. Joseph, Guardian of Yvonne Joseph, a minor, v. Rochester Motor Coach Company. Judgment affirmed.

COUNSEL

Marvin D. Power, with him Margiotti & Casey and John C. Stern, for appellant.

Charles McC. Barrickman, with him Buchanan, Wallover & Barrickman, for appellee.

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

Author: Arnold

[ 380 Pa. Page 189]

OPINION BY MR. JUSTICE ARNOLD

In this action of trespass for injuries to the minor plaintiff occasioned when run over by defendant's bus, the jury returned a verdict for defendant, and plaintiffs appeal from the refusal to grant a new trial.

Plaintiffs acknowledge that there was no error in the trial, including the court's charge, but contend that the court below abused its discretion in that the verdict

[ 380 Pa. Page 190]

    was against the evidence and the weight of the evidence.

The proof may be clear and indisputable, yet if dependent upon oral testimony it is the jury's province to decide as to the law applicable to the facts, under proper instructions of the court: Reel v. Elder, 62 Pa. 308, 316. And, as recently stated by Justice JONES in Londrino v. The Quitable Life Assurance Society of the United States, 377 Pa. 543, 544, 105 A.2d 333: "It is indeed infrequent that a trial court grants a new trial solely on the ground that the verdict was against the weight of the evidence, and it is still more unusual for an appellate court to reverse a lower court's refusal of a new trial for such reason." (Italics supplied). Unless we find that the court below has abused its discretion in refusing new trial, therefore, we cannot reverse: Paustenbaugh v. Ward Baking Company, 374 Pa. 418, 421, 97 A.2d 816.

The minor plaintiff, nine years of age at the time of the accident, had attended a picnic sponsored by a church at the picnic grounds in Center Township near Aliquippa. A bus owned and operated by defendant was chartered by the church to transport persons to and from the grounds. Parking was controlled by Boy Scouts for the church. At approximately 8:30 P.M., in company with many others, the minor plaintiff was waiting at a pick-up point on the grounds to board the bus for her return home. She saw the bus enter the grounds from the public road approximately 2,500 feet away, and watched it as it approached. As it did so, she advanced to the front of the crowd. The bus was now proceeding at a slow rate of ...


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