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RUTOVITSKY v. MAGLIOCCO (01/05/59)

January 5, 1959

RUTOVITSKY
v.
MAGLIOCCO, APPELLANT.



Appeal, No. 321, Jan. T., 1958, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Jan. T., 1956, No. 6174, in case of Philip Rutovitsky v. Angelo Magliocco. Judgment affirmed.

COUNSEL

Robert J. Spiegel, with him Gratz, Sperling & Fitzgerald, for appellant.

Avram G. Adler, with him Freedman, Landy and Lorry, for appellee.

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

Author: Bok

[ 394 Pa. Page 388]

OPINION BY MR. JUSTICE BOK.

The plaintiff, appellee, has a verdict for personal injuries. The questions raised by motions for a new trial and for judgment n.o.v. are the plaintiff's contributory negligence and the lack of defendant's negligence.

The facts, established by the verdict most favorably to the plaintiff, are these:

He was returning home on foot from a personal errand. He is a small man and was seventy-two years old at the time of the accident. He reached the crosswalk at the northwest corner of two Philadelphia streets, Ninth and Shunk, and was facing east in order to cross Ninth on the north side of Shunk. His home was half a block away on a small street intermediate between Eighth and Ninth, and a house or two north of Shunk. Both streets carried one-way traffic: Ninth northward and Shunk westward. Cars were parked solidly on all eight sides of the intersecting streets. Shunk is thirty-four feet wide and Ninth twenty-six, both having sidewalks twelve feet wide. The only traffic control was a stop sign on Shunk Street for westbound traffic. The accident happened at noon of a clear, dry day late in April.

[ 394 Pa. Page 389]

Plaintiff, at the curb, looked to the south, saw nothing coming, and remembered no more until he awakened in the hospital six hours later. This entitled him to the presumption that he used due care. In Grgona v. Rushton, 174 Pa. Superior Ct. 417 (1953), the Court said: "Furthermore, since the plaintiff testified that he remembered nothing from the time he stepped onto Chester Road on August 21, 1950 until he regained consciousness in a hospital some 14 days later, he was entitled to the presumption that he did all the law required him to do and was not contributorily negligent. Heaps v. Southern Pa. Traction Co., 276 Pa. 551, 120 A. 548. Such presumption 'is overcome, so as to render the question of contributory negligence a matter of law, only where undisputed testimony and the inferences drawn from it point to only one conclusion....'" (p. 421)

See also Claypool v. Schrecengost, 181 Pa. Superior Ct. 1 (1956); Auel v. White, 389 Pa. 208 (1957).

Although the presumption is rebuttable, the jury did not credit the defendant's ...


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