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KOSMAHL v. EMERY. (01/04/55)

January 4, 1955

KOSMAHL, APPELLANT,
v.
EMERY.



Appeals, Nos. 295 and 296, Jan. T., 1954, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1952, No. 6323, in case of Fred Kosmahl et ux. v. Walter Emery. Judgment affirmed.

COUNSEL

Leon Rosenfield, with him Jacob B. Abrams, for appellants.

David F. Kaliner, for appellee.

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

Author: Bell

[ 380 Pa. Page 224]

OPINION BY MR. JUSTICE BELL

The wife-plaintiff was walking across Frankford Avenue on December 26, 1952, at about 5 o'clock P.M., with her two little daughters. She foolishly walked at a point 60 to 70 feet north of the pedestrian cross-walk at Cottman Street. Frankford Avenue is a two-way North-South street 58 feet wide, with double car tracks. There were no automobiles and so far as the evidence discloses, no trolleys moving at that point at the time plaintiff crossed the street. When she reached a point in the street approximately 5 to 6 feet from the East curbline, she turned southeast-wardly in order to walk between two automobiles which

[ 380 Pa. Page 225]

    were parked along the curb. There was a space of 2 feet between the automobiles. As she walked between the parked automobiles defendant's vehicle backed slowly into her, struck her and continued to move back about one foot. She was knocked down and her left ankle broken.

The jury returned a verdict for the defendant. Plaintiff filed a motion for a new trial alleging the unjust nature of the verdict and errors in the charge of the Court. Plaintiff took no specific or general exception to the charge of the Court. Plaintiff's motion for new trial was dismissed and judgment entered on the verdict in favor of the defendant.

We find no basic or fundamental error in the charge of the Court and we agree with the lower Court that the verdict of the jury was not capricious and was not against the weight of the evidence. This was solely a jury question and there being no abuse of discretion we will not reverse the order refusing a new trial.

Disposition

Judgment ...


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