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PATRICIA F. HENRY v. FRANK BULAH AND ARTHUR TURNER (01/14/55)

January 14, 1955

PATRICIA F. HENRY, A MINOR, BY FRANKLIN T. HENRY, HER GUARDIAN, FRANKLIN R. HENRY, A MINOR, BY FRANKLIN T. HENRY, HIS GUARDIAN, AND FRANKLIN T. HENRY AND GRACE M. HENRY, PARENTS OF SAID MINORS, IN THEIR OWN RIGHT,
v.
FRANK BULAH AND ARTHUR TURNER, APPELLANTS



Appeals, Nos. 146, 147 and 148, Oct. T., 1954, from order of Court of Common Pleas of Berks County, Sept. T., 1951, No. 154, in case of Patricia F. Henry, a minor, by Franklin T. Henry et al. v. Frank Bulah and Arthur Turner. Order affirmed.

COUNSEL

George R. Eves, Reading, for appellants.

Charles H. Weidner, with him Clarence C. Mendelsohn and Stevens & Lee, Reading, for appellees.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Gunther

[ 177 Pa. Super. Page 400]

OPINION BY GUNTHER, J.,

Patricia and Franklin R. Henry, minor plaintiffs, were struck and injured by a truck driven by the defendant

[ 177 Pa. Super. Page 401]

Turner and owned by his co-defendant, Bulah. Defendants admitted liability; the case went to the jury solely on the issue of damages, and the jury returned verdicts of $200 for Patricia, $1,500 for Franklin and $1,626.25 for the parents. On plaintiffs' motion, the court below awarded a new trial on the grounds of inadequacy of verdicts, and defendants have appealed the award.

Patricia, who was 11 years old at the time of the accident, was rendered unconscious by the accident, suffered contusions and abrasions of the elbows, chest and scapular region and had frequent headaches continuing until the trial two years later. She was in bed approximately one week. Franklin, who was 6 years old at the time of the accident, suffered a cerebral concussion and a fracture of the right femur. He remained in a hospital for two weeks and had a cast on his leg for about three months. His leg was operated on and a steel plate inserted and fastened thereto, which remained at the time of the trial, but which could have been removed. He retains a seven inch scar on his leg. He was sent to a special school for a while in order to avoid being near active children who might have caused him a reinjury.

The principles governing the award of a new trial were extensively dealt with in Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857, in which it was stated that "'The presumption is that the trial court was justified in granting a new trial even when the reason given therefor is an insufficient reason unless the court expressly states that it is the only reason.'" And, further that "'An award of a retrial is an inherent power of the court of common pleas and entirely discretionary'" and "'One of the least assailable grounds for the exercise of such power [to grant a new trial] is the trial court's conclusion that... the interests of justice

[ 177 Pa. Super. Page 402]

    therefore require that a new trial be awarded; especially in such a case is an appellate ...


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