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DANIELS v. FREDERICK. (03/22/61)

March 22, 1961

DANIELS, APPELLANT,
v.
FREDERICK.



Appeals, Nos. 355 and 356, Oct. T., 1960, from judgments of Court of Common Pleas of Lehigh County, June T., 1959, Nos. 274 and 274-A, in cases of Ruth M. Daniels v. Yale Frederick and Edward L. Daniels et al. v. Yale Frederick et al. Judgments affirmed.

COUNSEL

Donald E. Wieand, with him Butz, Hudders, Tallman Huston & Wieand, for additional defendant, appellant.

Boyd H. Walker, and Walker & Walker, for plaintiff, appellant.

Paul A. McGinley, for appellee.

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

[ 194 Pa. Super. Page 457]

OPINION PER CURIAM

The judgments entered in the Court of Common Pleas of Lehigh County are affirmed on that portion of the opinion of President Judge JAMES F. HENNINGER relating to the questions raised on appeal and which is set forth hereafter with a footnote added by this Court.

[ 194 Pa. Super. Page 458]

"Paula Daniels, wife of Russel Daniels, was a passenger in the automobile of Edward L. Daniels, driven by additional defendant, Ruth M. Daniels, wife of the owner. The plaintiffs sued original defendants for the damages suffered when the Daniels car was forced off the road by the truck driven by defendant Frederick and then struck a tree, although there was no contact between the truck and the car.

"Edward L. Daniels recovered a verdict against Yale Frederick and Ruth M. Daniels for $1074.80 for the damages to his automobile, Paula Daniels for $3000 for pain and suffering and disfigurement and Russel Daniels for $2335.90 for past and future medical expenses for his wife, Paula Daniels.

"Ruth M. Daniels as plaintiff and as additional defendant has moved for a new trial ...

"Ruth M. Daniels has filed the following reasons for a new trial: (1) failure to instruct on the burden in proving negligence against an additional defendant; (2) failure to instruct on the burden in proving contributory negligence; (3) error in charging that a plaintiff must show that he was not guilty of contributory negligence; (4) error in charging that plaintiff may not recover unless free from contributory negligence and (5) charge on proximate cause was erroneous and confusing.

"As to point No. 5 above, we read the points for charge submitted on the question of proximate cause and elaborated upon them. At the end of the charge ...


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