Appeal, No. 78, March T., 1955, 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 affirmed.
Henry R. Beeson, with him George Y. Meyer and Higbee, Lewellyn & Beeson, for appellant.
W. K. Newell, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Edith Polando was seriously injured when a bus on which she was riding as a passenger collided with an automobile on Route 51 in Fayette County. She sued the owners of the bus, the Blue Ridge Transportation Company, and was awarded a verdict of $25,000.
She died after the trial and an autopsy revealed that cancer was involved. The Court of Common Pleas of Fayette County ordered a new trial which ended in a verdict for the administratrix of the estate but the amount of the damages was limited to 6 1/4 cents by order of the Court on the theory that the plaintiff's death was due to cancer. The defendant moved for judgment n.o.v., which was granted, and the plaintiff appealed to this Court. On June 26, 1953, we reversed and ordered a new trial with instructions that in the event of a verdict for the plaintiff the jury was to determine the amount thereof according to the testimony presented.*fn*
The case was retried and the jury found in favor of the plaintiff in the sum of $11,881.48. The defendant moved for judgment n.o.v. and a new trial. In refusing both motions the lower court said: "The Supreme Court has already held that on all issues, including that of superseding negligence, this case was properly one for a jury, and accordingly, the defendant's motion for judgment in its favor n.o.v. must be overruled and dismissed: See Polando v. Blue Ridge Transportation Co., 374 Pa. 485."
The appellant assumes from this statement of the lower Court that it based its conclusion entirely on the fact that we had passed on the factual situation in 374 Pa. 485. But this contention ignores that certain part of the Court's Opinion in which it said: "Its [defendant's] motion for a new trial, as argued at bar and in its brief, is based solely on the contention that the verdict is against the weight of the evidence with respect to negligence and proximate cause; but as three successive juries have found against it on substantially the same evidence, a majority of the court are of the
opinion that the question of liability should also now be regarded as settled. No complaint is made of the conduct of the trial, ...