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PERKON v. MARNELLA (05/02/58)

May 2, 1958

PERKON
v.
MARNELLA, APPELLANT



Appeal, No. 11, March T., 1958, from order of Court of Common Pleas of Erie County, May T., 1955, No. 21, in case of Richard Perkon, a minor, et al. v. Louis Marnella. Order affirmed.

COUNSEL

Bernard F. Quinn, with him Quinn, Leemhuis, Plate and Dwyer, for appellant.

John A. Blackmore, for appellee.

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

Author: Musmanno

[ 392 Pa. Page 320]

OPINION BY MR. JUSTICE MUSMANNO

On the evening of March 11, 1953, the Perkon family in Erie, feeling the need for some refreshment, asked Richard, the 16-year-old son, to go for some ice cream at the Jersey Creamery in the town. Richard mounted his motorcycle and set off on his pleasant mission. A few minutes later he was lying in the dust of Oakmont Avenue, his motorcycle overturned, and his right leg fractured in three places. Only 800 feet from his home he had collided with a truck which, unlighted and unattended, was parked on the same side of the street in the direction Richard was travelling.

Richard's father, Edgar Perkon, brought suit in behalf of the son and in his own right against the owner of the truck, Louis Marnella, and the jury hearing the case returned a verdict against Marnella in the sum of $9319.29 in favor of Edgar Perkon. The verdict slip made no mention of Richard. When the Trial Judge asked the jury for an elucidation of the verdict, the foreman replied: "The jury didn't find for the boy."

The defendant moved for judgment n.o.v. He also asked the Court to mold the verdict so that it would read: "We find for the defendant, Louis Marnella." The Court refused both motions, but of its own volition ordered a new trial.

The defendant has appealed to this Court, still urging judgment n.o.v. He argues that (1) the plaintiff did not establish "by clear and convincing evidence sufficient to visualize the occurrence in the minds of the jury an exception to the assured clear distance rule," and (2) that Richard Perkon was guilty of contributory negligence.

[ 392 Pa. Page 321]

It is the contention of the plaintiffs that Richard was unable to see the parked truck on Oakmont Avenue because at the crucial moment a car coming from the opposite direction obscured his vision. The defendant says that the jury did not believe Richard's testimony in this respect. In support of this conclusion he asserts that the jury discredited the oncoming car theory because it failed to find a verdict in behalf of Richard who had testified to the oncoming car. But this argument while interesting, looks at only one prong of the verdict. The verdict had two prongs: one awarding money damages to the father, the other denying money damages to the son. If we are to accept the rule of law that, where judgment n.o.v. is involved, we must read the evidence in the light most favorable to the verdict-winner, we must give credence to the oncoming-car thesis. Otherwise, there would be no justification for the verdict in favor of the father-plaintiff. Since we cannot discard any evidence which supports the father's verdict, we must, so far as his verdict is concerned, accept the son's testimony which gives fiber and substance to the father's verdict.

The defendant maintains that the jury, by its verdict, intended to pronounce Richard guilty of contributory negligence. Of course, such a conclusion could fall within the realm of possibility, but it is also within the realm of possibility that the jury exonerated Richard of contributory negligence and refused to award him a verdict for any one of a score of other reasons. The jury may have felt that motorcycles are inherently hazardous or that a 16-year-old boy should not be out at night, even with his parents' consent. It would be the sheerest speculation to attempt to ascertain why the jury excluded ...


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