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JOHNSON ET AL. v. SHINDEHITE. (06/10/59)

June 10, 1959

JOHNSON ET AL., APPELLANTS,
v.
SHINDEHITE.



Appeals, Nos. 54 and 55, April T., 1958, from order of Court of Common Pleas of Westmoreland County, Aug. T., 1953, No. 66, in case of Jane Tarr Reaney Johnson, individually et al. v. George Shindehite et al. Order affirmed.

COUNSEL

Christ. C. Walthour, Jr., with him Fred B. Trescher, and Kunkle and Trescher, for appellants.

Edward S. Stiteler, with him Vincent E. Williams, and Smith, Best and Horn, for appellees.

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

Author: Gunther

[ 190 Pa. Super. Page 36]

OPINION BY GUNTHER, J.

The only question involved in this appeal is whether the court below abused its discretion in granting a new trial.

[ 190 Pa. Super. Page 37]

On July 22, 1951, Jane Tarr Reaney, who was then a minor, was a passenger in a 1946 Dodge sedan operated by Lawrence Spohn. This automobile was involved in a collision on Route 119 between Crabtree and Greensburg, Westmoreland County, with a 1948 Chevrolet station wagon operated by George Shindehite. As a result of that collision, Jane Tarr Reaney (who subsequently married and was known at the time of trial as Jane Tarr Reaney Johnson) suffered a fractured jaw, bruises of the face and shoulders, and was required to have several of her teeth extracted. As a result of such injuries a trespass action was instituted by the minor in her own right and by the parents of the minor in which George Shindehite was named defendant. Subsequently, Lawrence Spohn was joined as an additional defendant.

The first trial was held on February 18, 1954, when a juror was withdrawn and the case continued. The second trial commenced on October 17, 1956, and at the conclusion of this trial the jury returned a verdict in favor of appellants and against the original defendant. The defendant filed a motion for a new trial, which the court en banc granted on December 10, 1957 in a unanimous opinion. The reasons assigned for the granting of a new trial were (a) that the court was totally unable to believe that the accident happened in the manner related by the plaintiffs; (b) that the jury were out of line with the natural course of events, and (c) that error has been committed and the only way it can be rectified is by the awarding of a new trial.

The parties involved in this accident went to see a fireworks display at Crabtree on the night of July 21, 1951. Both plaintiffs and the original defendant were returning to Greensburg shortly after midnight and, when approximately a mile and a half from the city

[ 190 Pa. Super. Page 38]

    limits of Greensburg, the collision occurred. The plaintiffs testified that the defendant's car was ahead of them and completely stopped because of traffic ahead of him. As they came up in the car driven by Lawrence Spohn, they stopped completely about a half car length behind the car of the defendant. They were in a stopped position for approximately fifteen seconds when the defendant's car backed into the car in which they were passengers and just about the time Lawrence Spohn had set his handbrake and was in the act of straightening up. The minor plaintiff was in the front seat and as the collision occurred, she lurched forward and hit her head against the windshield. Defendant, on the other hand, testified that he was the last car in line heading toward Greensburg. As there were many cars ahead of him in a stopped position, he stopped and was in a stopped position for approximately fifteen to twenty seconds. While in such a stopped position, the additional defendant, Spohn, drove up suddenly behind him, ran into the back of his station wagon, throwing the children in his car on the floor. The bumper guard of Spohn's car was hooked underneath ...


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