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SELLY v. CIOCCA (11/09/59)

November 9, 1959

SELLY, APPELLANT,
v.
CIOCCA, APPELLANT.



Appeals, Nos. 203, 208 and 209, March T., 1959, from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1956, No. 1344, in cases of Theanna Selly v. Samuel R. Ciocca et al. Judgments reversed; reargument refused December 9, 1959. Trespass for personal injuries. Before KENNEDY, J. Verdict for plaintiff in amount of $15,000 and against both defendants; defendant Railways Company's motion for judgment n.o.v. granted, defendant Ciocca's motion for new trial refused, provided plaintiff filed remittitur in the amount of $3,000, and judgment entered as per remittitur. Plaintiff and defendant, Ciocca, respectively, appealed.

COUNSEL

Regis C. Nairn, with him Thomas F. Weis, Robert B. McKinley, and Weis & Weis, for appellants.

Leo Daniels, with him Prichard, Lawler & Geltz, for appellees.

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

Author: Bok

[ 397 Pa. Page 410]

OPINION BY MR. JUSTICE BOK

Plaintiff, a passenger in an automobile, got a verdict against both its driver and the streetcar which ran into it. The verdict was for $15,000, which the court below reduced to $12,000. The court also gave judgment n.o.v. for the Pittsburgh Railways Company. Plaintiff and Ciocca, driver of the automobile, appealed this action, and Ciocca also appealed the judgment entered against him only.

Although the court in its opinion properly gave plaintiff the benefit of all inferences and resolutions of

[ 397 Pa. Page 411]

    conflict in the evidence, it was patently in error in saying that there was no competent evidence of the motorman's negligence. Both operators gave their version of the accident, and the jury was entitled to decide from the whole mosaic of the case what it chose to believe: Taylor v. Mountz, 387 Pa. 321 (1956), 127 A.2d 730. A man's story is not automatically self-exculpatory.

The accident happened at the right-angled intersection of Sandusky and North Canal Streets in Pittsburgh on December 1, 1954. Sandusky is 40 feet wide, with double rails, and the streetcar was going north on it. North Canal is 38 feet wide, with what would be its southerly sidewalk an 8-foot loading zone for storage plants: Ciocca was going east on this street.

He testified that he stopped at a stop sign located on the northwest corner and then went on at not over five miles per hour. At the sign he looked both ways and saw nothing. It was almost 10:30 on a rainy night, the streets wet and the visibility not bad, despite the slight fog. He could see about twenty feet to the side. He was across the southbound track when he looked again to his right and for the first time saw the streetcar, 25 feet away. It came on and hit him near the right rear after he had travelled in a few seconds about three feet to a point three-quarters of the way across Sandusky and with his front free of the northbound rails. To the right there was an underpass beneath the Pennsylvania Railroad tracks and coming north there was a four per cent upgrade. Ciocca said he could see "five feet or so" from where he stopped ...


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