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EISERT v. JONES (04/18/60)

April 18, 1960

EISERT
v.
JONES, APPELLANT.



Appeal, No. 135, March T., 1959, from order of Court of Common Pleas of Erie County, May T., 1958, No. 33, in case of Dorothy M. Eisert, administratrix of the estate of Donald B. Eisert, deceased v. Mary Ann Jones. Order affirmed.

COUNSEL

Irving Olds Murphy, with him Gifford, Graham, MacDonald & Illig, for appellant.

Gerald A. McNelis, Sr., with him McNelis and McNelis, for appellee.

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

Author: Bok

[ 399 Pa. Page 205]

OPINION BY MR. JUSTICE BOK.

Following a jury's verdict for defendant, the court below granted a new trial and defendant has appealed.

The court did not certify, when requested, that its was based on a single reason, but referred to its opinion, which deals with several errors alleged by plaintiff and fastens on two to justify its grant of new process.

[ 399 Pa. Page 206]

Since we feel that the case should properly be tried again, we will not pass on the factual or legal questions of negligence but will refer to such parts of the evidence as are needed to sustain our approval of the action below.

The accident occurred at the corner of Plum and Eleventh Streets in Erie on a snowy, slushy day. Plaintiff's decedent, driving a truck, was going East on Eleventh, a through highway, and defendant was going North on Plum, which was controlled by a stop sign. Cars were parked to the corner along the south side of Eleventh west of Plum. Defendant drifted to the curb line from the stop sign by letting her car creep on its hydromatic gear without touching the accelerator. Near the curb line she saw the truck coming and braked. Whether she stopped before the collision is somewhat uncertain: she testified that she did, but in a statement given to the police there is a possible indication that she hit the truck near the rear instead of its front-swiping her. No part of the truck forward of the right rear wheel was damaged, and the whole front of defendant's car showed crush.

There may have been some discrepancy in the defendant's testimony over how far away from her the truck was when she first saw it, but the farthest version was "alongside the back of the first [parked] car" which a policeman measured as twenty-four feet west of the west curb line of Plum. She estimated the truck's speed as 35 miles per hour, and her statement to the police that "it seemed to me it was coming very fast" was allowed in evidence.

In cross-examination defendant was asked: "How long had you been driving before this accident?" This obviously did not refer to that particular day, as her route prior to the collision was thoroughly ...


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