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MIDDLETON v. GLENN. (06/30/58)

June 30, 1958

MIDDLETON, APPELLANT,
v.
GLENN.



Appeals, Nos. 230, and 231, Jan. T., 1958, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1954, No. 3363, in case of Gary Middleton et al. v. Dorothy Glenn. Judgment affirmed.

COUNSEL

Norman Shigon, for appellants.

Perry S. Bechtle, with him David E. Abrahamsen, for appellee.

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

Author: Arnold

[ 393 Pa. Page 361]

OPINION BY MR. JUSTICE ARNOLD

This action of trespass concerned injuries to the minor plaintiff while he was riding a bicycle toward the East River Drive down Strawberry Mansion hill in Fairmount Park, Philadelphia. Strawberry Mansion hill has a steep grade running in the direction of East River Drive and curves to its right some distance above the Drive. The testimony of the plaintiffs was that defendant crossed the white line which bisected the Strawberry Mansion hill, and struck the minor plaintiff when he was on the right hand side of the road.

[ 393 Pa. Page 362]

The defendant's testimony was that she was on her own side of the road and never crossed the white line, and that the minor plaintiff was on the wrong side of the road when he collided with her car. She swerved but was unable to avoid the accident.

The case was submitted to the jury, which had to reconcile the divergent testimony of the plaintiffs and the defendant. It resolved this question with a verdict for the defendant, thus absolving the defendant from all liability. Upon this verdict judgment was entered in the court below. The plaintiffs appealed to this Court, alleging certain trial errors, and asked for a new trial.

The appellants' first proposition is that the court erred in permitting the reading of hospital records concerning the minor plaintiff's alleged physical condition. This could only be pertinent as to the amount of damages, and since the defendant was absolved from liability, it is not necessary for this Court to pass upon the assignment: Nyce v. Muffley, 384 Pa. 107, 110, 119 A.2d 530.

The second question raised by the plaintiffs was that the court declined to charge that the defendant was bound by the incontrovertible physical facts rule. The difficulty with this contention is that there is no basis for the application of such rule. This point apparently refers to the testimony of witnesses who preceded the defendant in ascending Strawberry Mansion hill. They testified that as they drove around the curve they saw the minor plaintiff on his bicycle; that he narrowly missed striking their car; and that through the rear vision mirror they saw him collide with the defendant's car. There was no occasion here for the ...


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