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MADERA ET UX. v. KESTER. (07/17/56)

THE SUPERIOR COURT OF PENNSYLVANIA


July 17, 1956

MADERA ET UX., APPELLANTS,
v.
KESTER.

Appeal, No. 14, Oct. T., 1956, from order of Court of Common Pleas of Clearfield County, Feb. T., 1955, No. 249, in case of Gust Madera, et ux. v. Lex Kester. Order affirmed.

COUNSEL

Carl A. Belin, for appellants.

Dan P. Arnold, D. Edward Chaplin and Chaplin & Arnold, for appellee.

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

Author: Wright

[ 181 Pa. Super. Page 161]

OPINION BY WRIGHT, J.

On October 16, 1953, Julia Madera accompanied her seven year old daughter, an elementary school pupil in Penn Township, Clearfield County, on a trip to and from the nearby Borough of Curwensville. The means of transportation was a school bus, in which other pupils and their mothers were also conveyed. The purpose of the journey was to have the pupils in question receive their regular school medical examinations. When she attempted to alight from the bus at the conclusion of the return trip, Mrs. Madera tripped and fell to the ground. She and her husband, Gust Madera, instituted a trespass action against the bus owner, Lex Kester, alleging that the steps of the bus had, by long usage, become dangerously worn. After trial, the jury returned a verdict for the defendant. The lower court refused to grant a new trial, and this appeal followed.

There were two steps with metal treads at the front right side of the bus. Appellants attempted to show that the front edges of these steps protruded sharply upward and inward, and that Mrs. Madera's toe caught in the protruding edge of the upper step.On the other hand, the defense was that the steps were not negligently maintained, that the bus had passed the customary police inspection two months earlier, that Mrs. Madera and other mothers originally entered the bus, got off at Curwensville, and re-entered the bus all without difficulty, and that no one had difficulty getting off the bus on the return trip except Mrs. Madera. Photographs of the steps, taken six months after the accident, were introduced into evidence. We have examined

[ 181 Pa. Super. Page 162]

    these photographs and they do not appear to be helpful to appellants' contention. In our view, the verdict of the jury properly disposed of all controlling questions.

Present counsel for appellants contends that there were a number of errors in the charge of the trial judge. At the conclusion of the charge, an opportunity was afforded trial counsel to call attention to any errors or omissions. There was no response. Not only were there no special exceptions, but also there was not even a general exception. Furthermore, none of the reasons now advanced were raised before the lower court in the motion for a new trial. See Pryor v. Graff, 179 Pa. Superior Ct. 622, 117 A.2d 818. We have carefully reviewed the charge and find no fundamental error. See Koenig v. Flaherty, 383 Pa. 187, 117 A.2d 719; Palmer v. Sunshine Family Laundry Service Co., 177 Pa. Superior Ct. 595, 112 A.2d 449. Under the circumstances we deem it unnecessary to further extend this opinion.

Disposition

The order of the lower court is affirmed.

19560717

© 1998 VersusLaw Inc.



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