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WECKSLER ET AL. v. PHILADELPHIA (07/21/55)

July 21, 1955

WECKSLER ET AL.
v.
PHILADELPHIA, APPELLANT.



Appeals, Nos. 156 and 157, Oct. T., 1955, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1951, No. 3825, in case of Ida Wecksler et vir. v. City of Philadelphia and Allan Newman. Order refusing judgment n.o.v. reversed.

COUNSEL

Levy Anderson, Deputy City Solicitor, with him Raymond Kitty, Assistant City Solicitor, Jerome J. Shestack, First Deputy City Solicitor and Abraham L. Freedman, City Solicitor, for appellant.

M. Stuart Goldin, with him Abe J. Goldin and Goldin & Goldin, for appellees.

Before Rhodes, P.j., Ross, Gunther, Wright, Woodside, and Ervin, JJ. (hirt, J., absent).

Author: Woodside

[ 178 Pa. Super. Page 497]

OPINION BY WOODSIDE, J.

This is an action in trespass for personal injury brought by Ida and Jack Wecksler, husband and wife, against the City of Philadelphia, the Texas Corporation, the owner, and Allan Newman, the tenant operator of an automobile service station.

The case was tried before a jury in the Court of Common Pleas. At the conclusion of the testimony, the

[ 178 Pa. Super. Page 498]

    learned trial judge sustained the request of defendant Texas Corporation for binding instructions, but refused the city's request. The jury returned a verdict against the city and Newman in favor of the husband in the sum of $2481.99, and in favor of the wife in the sum of one shilling.

Defendant Newman filed a motion for judgment n.o.v., and for a new trial; the defendant city filed a motion for judgment n.o.v., and the plaintiffs filed a motion for a new trial limited to the question of damages. The court below dismissed the motion of both defendants; it dismissed the motion of the plaintiffs for a new trial limited to damages, and it granted a new trial without limitation on the ground that the award of damages was inadequate. The city has taken this appeal from the refusal of the court below to grant its motion for judgment n.o.v. There was no appeal taken by defendant Newman.

Reviewing the evidence in the light most favorable to the plaintiffs' cause, as we are required to do because the jury found in their favor, the facts are as follows:

Plaintiffs on the evening of March 10, 1951, at approximately 8 o'clock, were walking northward on a sidewalk on the east side of Thirty-Second Street, Philadelphia, between Susquehanna Avenue and Ridge Avenue. At the Ridge Avenue end of the block is the service station owned and operated by the above defendants. Across the pavement is a driveway leading into the service station. Two trucks were standing on this driveway partly blocking the pavement, but allowing sufficient room to walk on the sidewalk between them and the street. These trucks were between the street light, which was about 80 or 90 feet away, and ...


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