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FIRST NATIONAL BANK MCKEESPORT v. SIMKO (04/16/56)

April 16, 1956

FIRST NATIONAL BANK OF MCKEESPORT, ADMINISTRATOR,
v.
SIMKO, APPELLANT.



Appeals, Nos. 163 and 164, March T., 1955, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1952, No. 338, in case of The First National Bank of McKeesport, Administrator, etc. v. William Thomas Simko and Donald Slater. Judgments affirmed.

COUNSEL

Armin H. Friedman, for appellant.

Robert Palkovitz and David S. Palkovitz, with them Jack Palkovitz, for appellee.

Before Stern, C.j., Jones, Bell, and Musmanno, JJ.

Author: Musmanno

[ 384 Pa. Page 603]

OPINION BY MR. JUSTICE MUSMANNO

Lillian Edith Burkholder was killed when the car in which she was a passenger left the roadway and crashed into two telegraph poles at 3 o'clock in the morning of October 25, 1951. The administrator of her estate brought suit against the driver of the car,

[ 384 Pa. Page 604]

William Thomas Simko, and its owner, Donald Slater. The jury exculpated Slater of all responsibility for the accident and returned a verdict in favor of the plaintiff in the sum of $1,000 under the Wrongful Death Act and $4,000 under the Survival Act.

It is contended by the appellant, Simko, that he is entitled to judgment n.o.v. on the proposition that there was lacking evidence to establish negligence. The gravamen of his argument seems to be that since no eye witnesses appeared at the trial to testify to what occurred at the time of the tragic occurrence, the verdict is without legal evidence to support it. Evidence, however, is not limited to simultaneously recorded narrative of moving events. It may consist of phenomena observed before and subsequent to the happening which is the subject of the lawsuit.

It was testified in this case that pictures taken of the locus in quo showed "one pole sheared off and another pole pretty well damaged." A witness who arrived immediately after the collision testified that the front end and left side of the car were smashed in and that the car was resting against a damaged pole. There was evidence also that Simko admitted he was driving the car and that at the time of the fatal impact he heard a "bang."

Although the record leaves something to be desired in the way of detail, it is sufficiently complete to show that Simko allowed the car he was operating to leave the travelled portion of the road and to strike one or two poles with catastrophic consequences. In Knox v. Simmerman, 301 Pa. 1 (cited with approval in Kotal v. Goldberg, 375 Pa. 397, 400 (1953)) we allowed recovery where to offending car struck a pile of stone off the pavement: "It was a clear day on a ...


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