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THOMAS v. TOMAY (01/05/59)

January 5, 1959

THOMAS
v.
TOMAY, APPELLANT.



Appeals, Nos. 225, 226 and 227, March T., 1958, from judgments of Court of Common Pleas of Fayette County, June T., 1953, Nos. 604 and 605, and June T., 1952, No. 793, in cases of Richard C. Thomas, a minor, et al. v. Mary Tomay, administratrix of the estate of Frank Tomay, Jr., et al. v. Same, Mary Tomay, administratrix of the estate of Frank Tomay, Jr., deceased v. Theodore Wade Frazee. Judgments reversed.

COUNSEL

David E. Cohen, for appellant.

Samuel J. Feigus, with him Wade K. Newell, for appellees.

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

Author: Jones

[ 394 Pa. Page 300]

OPINION BY MR. CHIEF JUSTICE JONES.

These appeals are from the respective judgments entered in three separate trespass actions instituted to recover damages for personal injuries in two of the cases and for a death in the third, all of which resulted from a collision between two passenger automobiles.

At the outset, we are impelled to remark the great length of time that was allowed to elapse before these cases were brought to trial - a circumstance which is all the more regrettable since they must go back for retrial because of reversible error, harmful to the appellant, which the record discloses.

About 1:45 in the morning of November 4, 1951, a sedan, driven by Theodore Frazee, seventeen, of Friendsville, Maryland, while traveling south from Pittsburgh toward Uniontown on Highway Route 51,

[ 394 Pa. Page 301]

    collided with a coupe driven by Frank Tomay, Jr., on his way home, a few miles north of the scene of the accident. There were two guest passengers in Frazee's automobile, namely, Richard Thomas and James Shultz, both eighteen. Tomay, who was the sole occupant of his car, was a steelworker, twenty-nine years old, unmarried, and living with his parents. His injuries immediately rendered him unconscious and he died four hours later in a local hospital without having regained consciousness. Frazee and his two companions were seriously injured but all of them survived.

The three trespass actions, which we have already noted, were as follows: Mary Tomay, administratrix of the estate of Frank Tomay, Jr., sued Theodore Frazee, under the wrongful death and survival statutes, to recover damages for her decedent's death; and the respective guardians of Richard Thomas and James Shultz, Frazee's passengers, brought separate suits against Mary Tomay, administratrix of the estate of Frank Tomay, Jr., to recover damages for their personal injuries. In each of the two latter actions, the defendant administratrix brought Theodore Frazee upon the record as an additional defendant.

Route 51 between Pittsburgh and Uniontown runs in a generally north-south direction. At the place of the collision it was a 24-foot two-lane macadamized roadway curving sharply to the right, looking south. It was intersected from the east on the outside of the curve by a 16-foot macadam ...


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