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KAPLAN v. KAPLAN (05/25/61)

May 25, 1961

KAPLAN
v.
KAPLAN, APPELLANT.



Appeals, Nos. 111 and 112, Jan. T., 1961, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1956, No. 6857, in case of Leonard Kaplan v. Philadelphia Transportation Company et al. Judgment reversed; reargument refused June 16, 1961.

COUNSEL

Howard R. Detweiler, for appellants.

Max Meshon, with him Carl K. Zucker, and Eilberg, Meshon & Brener, for appellee.

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

Author: Bell

[ 404 Pa. Page 148]

OPINION BY MR. JUSTICE BELL.

Plaintiff brought an action in trespass against the Philadelphia Transportation Company to recover damages for personal injuries he sustained when struck by defendant's trackless trolley on January 20, 1956. Morris Kaplan and Louis Shupak Company, appellants herein, were joined as additional defendants by the Philadelphia Transportation Company. The jury returned a verdict in favor of plaintiff and against all*fn* defendants. The additional defendants filed motions for judgment n.o.v. and for a new trial. These motions were denied by the Court below and from the judgment entered on the verdict, these appeals were taken.

In considering a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor: Ason v. Leonhart, 402 Pa. 312, 165 A.2d 625; McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232.

Considering the evidence in the light of these well settled principles, the facts, which are relatively undisputed, may be thus summarized:

[ 404 Pa. Page 149]

Plaintiff, who was serving in the United States Army, was home on leave. On the day of the accident plaintiff accompanied his uncle Kaplan on the latter's pickle delivery route. The additional defendant Morris Kaplan was employed as a driver by the additional defendant Shupak Company. Defendant stopped the truck on the south side of Ridge Avenue (near Dauphin Street) in Philadelphia. Plaintiff, who was assisting his uncle, took a gallon jar of pickles from the truck and delivered it to a store on the southeast corner of Ridge Avenue and Dauphin Street. When plaintiff came out of the store, he discovered the truck had been moved and was now stopped on Ridge Avenue above the northwest corner of Ridge Avenue and 32nd Street. The truck was parked on the left-hand (wrong) side of the street facing traffic. Plaintiff testified that he walked up to the rear of the truck with the intention of putting some empty pickle jars in the back of the truck and then walking out into the travelled portion of Ridge Avenue to get into the cab of that truck in the face of traffic. He walked in the street behind the truck, peered around it to see if any traffic was approaching and was instantly struck by the trackless trolley. He could have gotten into the cab of the truck from the sidewalk with complete safety.

Plaintiff's basic contention is that additional defendants were guilty of negligence per se because their truck was parked in violation of ยง 1020 of The Vehicle Code of May 1, 1929,*fn** and that this negligence was the proximate cause of the accident. Violation of a statute may be negligence per se and liability may be grounded on such negligence if, but only if, such negligence is the proximate ...


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