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ROSCHE v. MCCOY (11/25/59)

November 25, 1959

ROSCHE
v.
MCCOY, APPELLANT.



Appeals, Nos. 141 and 142, March Term, 1959, from judgments of Court of Common Pleas of Mercer County, Sept. T., 1956, Nos. 67 and 197, in cases of William Rosche, guardian for Dennis Howard Rosche, a minor, v. Frank C. McCoy, executor of the estate of Fred McCoy, deceased et al., and William Rosche v. Frank C. McCoy, executor of the estate of Fred McCoy, deceased. Judgments reversed; reargument refused December 31, 1959. Trespass for personal injuries. Before RODGERS, P.J. Verdict for father, plaintiff, in amount of $1850, and for minor in amount of $12,750; defendant's motions for judgment n.o.v. and for new trial refused, and judgments entered on verdict. Defendant appealed.

COUNSEL

William J. Joyce, with him Martin E. Cusick, and Wiesen, Cusick, Madden, Joyce, Acker & McKay, for appellant.

Cyril T. Garvey, with him Chester B. Scholl, and Evans & Garvey, for appellees.

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

Author: Mcbride

[ 397 Pa. Page 618]

OPINION BY MR. JUSTICE MCBRIDE

This is an appeal from a judgment entered on a verdict for plaintiff in a negligence case. The accident occurred on October 22, 1954, in Sharon, Pennsylvania, when a vehicle, being driven by Fred McCoy, in a southward direction on Flowers Avenue, came in contact with the minor plaintiff, Dennis Rosche,*fn1 causing a head injury to him which was permanent in nature. The action was commenced by William Rosche as parent and natural guardian both in his own right and on behalf of Dennis. Prior to the trial the defendant,

[ 397 Pa. Page 619]

Fred McCoy, died and his executor, Frank C. McCoy, was substituted for him on the record. The defendant joined the father and mother of Dennis as additional defendants. On November 8, 1956, the deposition of Fred McCoy was taken to perpetuate his testimony and in May, 1957, during the lifetime of Fred McCoy, the deposition of the minor plaintiff, Dennis, was taken. At that time Dennis was 7 years 9 months old. The trial commenced on February 3, 1958 and concluded on February 6, 1958. The jury returned a verdict in favor of the parent, William Rosche, in his own right and also on behalf of the minor child. Defendant filed motions for judgment n.o.v. and for a new trial. These were denied and judgments were entered on the verdict. On appeal the motion for judgment n.o.v. has not been pressed. In any event, the evidence actually received by the court, whether its rulings thereon were right or wrong, must be considered in deciding such a motion. Cherry v. Mitosky, 353 Pa. 401, 45 A.2d 23; Hershberger v. Hershberger, 345 Pa. 439, 29 A.2d 95. The court below correctly refused to enter judgment n.o.v. on the authority of Van Buren v. Eberhard, 377 Pa. 22, 104 A.2d 98.

It is contended, however, that the verdict was against the weight of the evidence. This question is within the discretion of the trial judge, and his decision thereon will not be reversed unless for clear abuse of that discretion. Such abuse has not been shown.

Appellant presses upon us that there were serious trial errors. The most important is that the court admitted the testimony of Carolyn Laou, whose birth date is not shown by the evidence but who was 4 years of age at the time of the accident and 7 years of age at the time she testified. The court ruled that she was competent.

Competency is the rule and incompetency the exception. Allen's Estate, 207 Pa. ...


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