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CASON v. SMITH (12/11/58)

December 11, 1958

CASON
v.
SMITH, APPELLANT.



Appeal, No. 401, Oct. T., 1958, from orders of Court of Common Pleas No. 4 of Philadelphia County, June T., 1953, No. 9334, in case of Leroy Cason, a minor, by his guardian, et al. v. James L. Smith, Jr. Orders affirmed.

COUNSEL

J. Webster Jones, for appellant.

Arnold M. Kessler, with him Bernstein & Bernstein, for appellees.

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

Author: Rhodes

[ 188 Pa. Super. Page 378]

OPINION BY RHODES, P.J.

Defendant in this trespass action appealed from the refusal of his motion for judgment n.o.v. and from the grant of a new trial as to the minor plaintiff limited to the amount of damages for pain, suffering, and disability.

Leroy Cason, three and a half years of age, was injured on April 19, 1952, when he was struck by the automobile owned and operated by defendant. He suffered a fracture of the right leg and other injuries. The action was instituted against defendant by the minor, by and through his mother and natural guardian, to recover for personal injuries, and by the mother, in her own right as parent, to recover for medical expenditures and for the loss of earnings and services of her son. The jury returned a verdict for the mother for $843.55, representing full reimbursement for medical expenses incurred on behalf of the minor, and a verdict for the minor plaintiff in the sum of $200 for pain, suffering and disability. Defendant filed a motion for judgment n.o.v.; plaintiffs moved for a new trial on the ground that the verdict was inadequate. The court below refused the motion for judgment n.o.v. and granted a new trial "limited to the issue of damages for pain and suffering to the minor plaintiff ..."

The evidence and inferences therefrom viewed in a light most favorable to the plaintiffs indicate the following facts which are to be considered on defendant's

[ 188 Pa. Super. Page 379]

    motion for judgment n.o.v. Leroy Cason together with his mother, Annie Ruth Cason, and a two-year-old cousin were passengers in an automobile which took them to the vicinity of the home of Mrs. Cason's grandmother, located at 3823 Aspen Street, Philadelphia. Aspen Street is a two-way street running east and west; it is paved with asphalt. The Cason car was stopped and parked on the south side of Aspen Street to discharge its passengers. The home of Mrs. Cason's grandmother is located on the north side of Aspen Street. Mrs. Cason alighted from the parked car and carried Leroy in her arms across the street; she left him in the doorway on the porch of her grandmother's home and told him to remain there. She then returned to the car on the south side of Aspen Street for the other child. As she walked toward the south side of Aspen Street she looked to her left, i.e., eastwardly, and saw an automobile at the intersection of Aspen Street and Thirty-eighth Street, approximately 186 feet away. When she was about to step on the curb she heard a scream and a screech of brakes. She turned and observed Leroy lying under defendant's car with his heels protruding from beneath the left side of the car which was pointed in a westerly direction. Leroy's head was between the right and left front wheels.

There was an eyewitness to the accident, Mrs. Maggie Grant, who lived at No. 3822 on the south side of Aspen Street across from the home of Mrs. Cason's grandmother. Mrs. Grant was seated at her second floor window when she saw Mrs. Cason place Leroy in the doorway at No. 3823 Aspen Street, and also saw Mrs. Cason returning to the south side of the street when Leroy started to follow her. When Leroy ...


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