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GRACIANO ET AL. v. POLTENO. (06/11/57)

June 11, 1957

GRACIANO ET AL., APPELLANTS,
v.
POLTENO.



Appeals, Nos. 106, 107, and 108, April T., 1957, from judgments of Court of Common Pleas of Allegheny County, July T., 1952, No. 2709, in cases of Philomena F. Graciano and Joseph J. Graciano v. June Polteno and Joseph J. Graciano. Judgments reversed.

COUNSEL

Edward A. Damrau, with him Marurice Chaitkin, J. Lawrence McBride, Brennan, Brennan, Damrau & Mohan, and Dickie, McCamey, Chilcote, Reif & Robinson, for appellants.

Bruce R. Martin, with him Pringle, Bredin & Martin, for appellee.

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

Author: Gunther

[ 183 Pa. Super. Page 438]

OPINION BY GUNTHER, J.

Plaintiffs, Philomena F. Graciano and Joseph J. Graciano, her husband, in a trespass action, asked for damages for personal injury and property damage caused by defendant, June Polteno. Subsequent to the filing of the complaint, the original defendant joined Joseph J. Graciano as additional defendant against the claim of the wife and sought damages from him for personal injuries sustained in an automobile collision occurring on Jly 4, 1951, and a severance was granted from the claim of the wife. After trial, the jury rendered verdicts in favor of Philomena F. Graciano against her husband, as additional defendant, in favor of June Polteno, defendant, and in favor of the defendant against Philomena F. Graciano and Joseph J. Graciano.

Motions were filed on behalf of plaintiffs for a new trial and also on behalf of the additional defendant for a new trial and judgment n.o.v. On June 15, 1956, as

[ 183 Pa. Super. Page 439]

    amended September 21, 1956, the motion for judgment n.o.v. as to Philomena F. Graciano against her husband was granted, and all other motions were refused. These appeals followed.

The accident occurred on Northridge Drive, North Park, Allegheny County. Plaintiff, Joseph J. Graciano was operating a Buick automobile owned by Joseph J. Graciano Company in an easterly direction on Northridge Drive which is approximately an eighteen foot roadway running generally in an east-west direction. His wife was seated in the right front seat. At or near the place of the accident, the road makes a sharp right angle turn to the south, and has a high embankment to the right which cuts off the operator's view to approaching traffic. The roadway was wet from rain which had fallen previous to the accident. Defendant was operating a Ford sedan and, at or near the accident, was proceeding in a northerly direction along Northridge Drive. The right angle turn or curve was to her left, or west. Four passengers were with defendant in her car. The testimony as to how and where the accident happened was conflicting. The testimony of plaintiffs disclosed that the accident occurred on the approach to the curve or in the curve itself; that the plaintiffs' vehicle was traveling in the proper right-hand lane of traffic; that defendant's vehicle cut across the curve to plaintiffs' right side and was traveling in plaintiffs' lane at the time of the collision and that plaintiff swerved to the left to avoid a head-on collision. The testimony of the defendant disclosed that the accident occurred on defendant's approach to or in the curve; that she was operating in her proper lane of traffic and that plaintiffs' car swung over into her lane.

Appellants contend that the charge of the court was so inadequate as to constitute ...


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