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MCCLUSKEY v. POLOHA. (05/28/59)

May 28, 1959

MCCLUSKEY, APPELLANT,
v.
POLOHA.



Appeals, Nos. 71 and 72, March T., 1959, from order of Court of Common Pleas of Allegheny County, Oct. T., 1955, No. 400, in case of Maxwell Thomas McCluskey, Jr., a minor, et al. v. John Poloha. Order affirmed. Trespass for personal injuries. Before DUFF, J. Verdict returned for parents-plaintiffs in amount of $200 and for minor plaintiff in amount of $10,000; defendant's motion for new trial granted and order entered. Plaintiffs appealed.

COUNSEL

Harry Alan Sherman, for appellants.

George M. Weis, with him Weis & Weis, for appellee.

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

[ 396 Pa. Page 215]

OPINION PER CURIAM

This is an appeal from the action of the court below in ordering a new trial after a jury had awarded verdicts in the amount of $10,000 to the minor plaintiff and $200 to plaintiff's parents.

The court below in its opinion stated:

"The testimony produced by the plaintiffs shows that the minor plaintiff, then six years old, was struck by defendant's car on July 25th, 1954 while he was crossing Braddock Avenue and Eight Street, in the Borough of Braddock; that he was taken to the Braddock General Hospital and was kept under hospital

[ 396 Pa. Page 216]

    care until August 1st, 1954, when he was removed to his home. ...

"The mother of the minor testified that the boy was under the care of Dr. Milton Chetlin while in the Braddock Hospital and for a short period thereafter and that the child was referred to Dr. David Kosskoff. At the trial, Dr. Chetlin was not called to testify, it being explained that he was then in the State of Florida.

"The mother of the injured boy testified that he failed to recognize her after the accident until the afternoon of the next day; that he remained in the hospital for one week and was taken home, where he remained in bed for two weeks; that he experienced night spells, during which he would sit up in bed, shake and tremble; that the boy entered the first grade in the public school in September; that his memory was not so good; that he was slower in school and couldn't grasp like other children and that his grades went down and he missed school during the first year after the accident because of headaches.

"Dr. Kosskoff was the sole medical witness called by the plaintiffs. He testified that he first saw the minor plaintiff on February 2nd, 1955; that he received a report of the accident and the history from the father; that the child was unconscious for about a half hour and, since the accident, he had complained of pains in the back of his head and that he was quite sluggish and suffered from night attacks, occurring since the accident once or twice every two weeks, which were characterized by shaking ...


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