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PASCARELLA v. PITTSBURGH RAILWAYS COMPANY (04/26/57)

April 26, 1957

PASCARELLA
v.
PITTSBURGH RAILWAYS COMPANY, APPELLANT.



Appeals, Nos. 131, 132, 133, 137, 138 and 139, March T., 1957, from orders of Court of Common Pleas of Allegheny County, Jan. T., 1954, Nos. 2203, 2204 and 2205, in cases of William E. Long et al. v. Pittsburgh Railways Company; Mary Jane Pascarella, now known as Mary Jane Richardson et al. v. Same; Joyce Bonita Long et al. v. Same et al.; William E. Long et al. v. John Chizmar, Jr.; Mary Jane Pascarella et al. v. John Chizmar, Jr.; Joyce Bonita Long et al. v. John Chizmar, Jr. Order affirmed; reargument refused May 17, 1957.

COUNSEL

Leo Daniels, with him James A. Geltz and Prichard, lawler & Geltz, for railways company, defendant, appellant.

Kim Darragh, with him George Y. Meyer, for Chizmar, appellant.

Gerald N. Ziskind, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Musmanno

[ 389 Pa. Page 10]

OPINION BY MR. JUSTICE MUSMANNO

On the morning of October 14, 1953, at about 8 o'clock, four Wilkinsburg School pupils decided that it was "too lovely a morning to be in school." Quickly they planned on a carefree day to enjoy whatever innocent diversion and harmless adventure might present itself. They first entered the sylvan retreat of Frick Park where they consumed their lunches, and then they proceeded to the grass circle in the Park where automobiles pass by, hoping to board a car which would take them anywhere out of the confines of Wikinsburg, thus reducing the chances of their parents' knowing that they had cut classes for the day. The girls participating in this excursion which was to be dedicated to fun and merrymaking, but which ended in tragedy, were Judith and Joyce Long, twins, 14 years of age; Mary Pascarella, 15 years of age; and Ruth Craig who is not involved in these proceedings.

After several cars went by they hailed a green truck, owned and operated by John Chizmar, and asked him for a ride. Some conversation ensued and the girls climbed on to the vehicle, taking places in the open body of the truck. Chizmar now headed for his destination, to reach which, because of certain detours, he would pass through the intersection of Homewood Avenue and Penn Avenue in the city of Pittsburgh.

[ 389 Pa. Page 11]

As the truck proceeded in a northward direction on Homewood Avenue approaching Penn Avenue, a street car moved westwardly on Penn Avenue approaching Homewood. The vehicles arrived at the intersection simultaneously, and the inevitable collision occurred, bringing disastrous results to the itinerant school girls. Judith Long was fatally hurt, dying two hours after the accident, and the other girls sustained serious injuries.

William E. Long, Administrator of the estate of Judith Long, brought suit against the Pittsburgh Railways Company and John Chizmar. The minors Mary Pascarella and Joyce Long, through their appropriate representatives, also brought suit against the Pittsburgh Railways Company and John Chizmar. The Pittsburgh Railways Company and John Chizmar sued each other for damages done to their respective vehicles. The different causes were tried together.

At the trial there was conflicting testimony as to what orally transpired between the girls and Chizmar before they boarded the truck. The girls' version of the colloquy was that Chizmar made several offers as to the manner in which he would transport them: (1) that he would take two of the girls to their destination and then return for the other two; (2) that all four girls could sit in the cab with him; (3) that two could ride with him in front and two in the rear. The girls replied that he would be impeded in his driving if they shared the cab with him, nor would they accept ...


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