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KIRBY ET AL. v. CARLISLE. (07/21/55)

July 21, 1955

KIRBY ET AL., APPELLANT,
v.
CARLISLE.



Appeals, Nos. 85 and 86, April T., 1954, from judgment of Court of Common Pleas of Allegheny County, No. 1608, in case of Mae Kirby et al. v. Joseph J. Carlisle and George T. Gianoutsos. Judgment affirmed.

COUNSEL

Frances A. Muracca, for appellants.

Kim Darragh, with him George Y. Meyer, for appellees.

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

Author: Woodside

[ 178 Pa. Super. Page 391]

OPINION BY WOODSIDE, J.

The question here is whether the jury was justified in finding that the minor-plaintiff suffered no injuries for which damages should be allowed when she was struck by an automobile being negligently operated by the defendant.

The verdict read "guilty of negligence but no damages allowed to the plaintiff for injuries or loss of services because there were no injuries sustained by the minor plaintiff." President Judge MCNAUGHER of the Court of Common Pleas of Allegheny County, before whom the case was tried, molded this to be a verdict for the defendant and entered judgment accordingly.

The plaintiffs filed a motion for a new trial on the grounds that the verdict was against the evidence, the weight of the evidence, the law, the charge of the court, and that the trial judge erred in withdrawing from the jury's consideration the question of permanent injuries alleged to have been suffered by the minor-plaintiff. Argument on this motion was heard by four judges and the motion denied. This appeal followed.

An automobile was being operated by the defendant alongside a street car for some distance in the City of Pittsburgh. When the street car stopped at Shady Avenue and Forbes Street the minor-plaintiff, then thirteen years of age, alighted from the front door. The defendant was unable to stop his automobile, but turned it away from the girl. As he did either the left front bumper or the side of the automobile grazed her, but did not knock her down. The defendant stopped his car within a few feet after the contact.

Counsel for defendant makes no claim that his client was free from negligence or that the child was guilty of contributory negligence. The only question

[ 178 Pa. Super. Page 392]

    is whether the child sustained an injury for which the plaintiffs ...


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