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MCEWAN v. YELLOW CAB COMPANY (11/13/56)

November 13, 1956

MCEWAN
v.
YELLOW CAB COMPANY, APPELLANT.



Appeals, Nos. 280 and 281, Oct. T., 1956, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1954, No. 2596, in case of Josephine McEwan et vir v. Yellow Cab Company and William H. Harris. Judgment reversed.

COUNSEL

Tom P. Monteverde, with him James J. Leyden, Joseph H. Klein, and Schnader, Harrison, Segal & Lewis, for appellant.

Michael C. Rainone, for appellees.

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

Author: Ervin

[ 182 Pa. Super. Page 220]

OPINION BY ERVIN, J.

This is an appeal by defendant Yellow Cab Company in an action of trespass brought by plaintiffs, James H. McEwan and Josephine McEwan, his wife, to recover damages for personal injuries sustained by Mrs. McEwan. Plaintiffs were passengers sitting in the rear seat of the defendant's taxicab which was headed north on Germantown Avenue in Philadelphia. The taxicab stopped as it approached the intersection of Germantown Avenue and Huntingdon Street and was struck in the rear by an automobile operated by co-defendant William H. Harris. The trial resulted in a verdict by the jury of $4,000.00 for the wife plaintiff and $1,000.00 for the husband plaintiff, against both defendants. No motions were filed by defendant Harris challenging the verdicts. Defendant Yellow Cab Company filed motions for a new trial as to both plaintiffs on the grounds that the verdicts were grossly excessive, and insofar as they subjected Yellow Cab Company to liability were against the weight of the evidence and the result of the trial judge's inadequate instructions

[ 182 Pa. Super. Page 221]

    on the law. Motions for new trial were refused by the court in banc and from the judgments entered on the verdicts the Yellow Cab Company took this appeal.

The accident occurred on Sunday, September 5, 1954, at about 4:45 p.m. The weather was clear and the streets were dry. Huntingdon Street runs in a generally east-west direction. Germantown Avenue runs in a generally northwest-southeast direction. However, about 150 feet south of Huntingdon Street, Germantown Avenue bends sharply to the east. It bends again to the east, though not so abruptly, about 50 feet south of Huntingdon Street. Thus the vision of northbound motorists is obstructed by these two bends so that the intersection does not come into view until an approaching vehicle is somewhere between these two bends.

In order to determine whether the charge of the court was so inadequate, misleading and prejudicial as to necessitate the granting of a new trial the charge must be considered in relation to the testimony and the legal issues thus arising in the case.

William J. O'Connell, a cab driver with about six years' experience, testified that he operated his cab around the first of the above described bends in Germantown Avenue at a speed of 15 to 20 miles per hour and proceeded to a point approximately 75 feet south of Huntingdon Street, where he observed that the traffic light at Huntingdon Street was red for Germantown Avenue. O'Connell then braked his cab and brought it to a slow stop just south of the intersection. O'Connell testified that his cab was stopped at this light for about 10 ...


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