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MCCLUSKEY v. POLOHA. (12/14/60)

December 14, 1960

MCCLUSKEY, APPELLANTS,
v.
POLOHA.



Appeals, Nos. 213 and 214, April T., 1960, 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.

COUNSEL

Harry Alan Sherman, for appellants.

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

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

Author: Watkins

[ 194 Pa. Super. Page 288]

OPINION BY WATKINS, J.

This is an appeal from the order of the Court of Common Pleas of Allegheny County refusing a new trial in a trespass action to the plaintiffs-appellants, Maxwell Thomas McCluskey, Jr., a minor, by Maxwell Thomas McCluskey, Sr., father and guardian, and Maxwell well Thomas McCluskey, Sr., in his own right. The appellants contend for a new trial on the ground that the verdict was inadequate as the result of improper influence affecting the jury's impartiality.

This was the second trial of this case. Both trials resulted in a verdict for the appellants. The first trial resulted in a verdict in favor of the appellants in the amount of $10,200, which was upset by the court below, and a new trial granted because it was excessive and because of a misleading medical history. On appeal to the Supreme Court this action was affirmed in McCluskey v. Poloha, 396 Pa. 214, 152 A.2d 247 (1959). The instant trial resulted in a verdict for Maxwell T. McCluskey, Sr., in the amount of $300 and for his son, Maxwell T. McCluskey, Jr., in the amount of $1000.

The claim arose as the result of the minor appellant being struck by the appellee's automobile on July 25, 1954, in the Borough of Braddock, Pennsylvania. The minor was then six years of age and suffered a contusion of the brain and was hospitalized for seven days. According to all the medical testimony the boy had made a complete recovery at the time of the trial. The proven medical expenses resulting from the accident were $260.50.

The parents of the boy testified that he began to have nightmarish nocturnal episodes following the accident. The nocturnal nightmares were only observed by the parents and as the court below indicates, their existence and their seriousness was a jury matter. The boy's school record for the year following the accident shows that he was a straight "A" student and there

[ 194 Pa. Super. Page 289]

    was no difficulty with him from a behavior standpoint. The appellee in this case denied that he ever struck the child and he was corroborated by his wife. So, as the court below said, "Consequently the jury could have reached a verdict in favor of the defendant which would have been supported by evidence and plaintiffs would have received nothing at all. The jury also could have found that the defendant's car hit the minor plaintiff but that the defendant had no opportunity to avoid striking the child, with the same result. The evidence of any negligence on the part of the defendant is very meager indeed."

Though the verdict was small, it was not nominal, and can be reconciled with the injuries and expenses proven. In Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 97 A.2d 816 (1953), Justice ARNOLD covers our ...


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