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DEANGELIS v. BURNS. (06/26/61)

June 26, 1961

DEANGELIS, APPELLANT,
v.
BURNS.



Appeal, No. 153, Jan. T., 1961, from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1958, No. 3516, in case of Philomena DeAngelis v. John J. Burns, Jr. et al. Judgment affirmed.

COUNSEL

Joseph D. Shein, for appellant.

Bernard J. Smolens, with him Schnader, Harrison, Segal & Lewis, for appellee.

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

Author: Jones

[ 404 Pa. Page 231]

OPINION BY MR. CHIEF JUSTICE JONES.

This appeal arises out of an action in trespass for personal injuries which the plaintiff sustained, while standing at a bus stop on the west sidewalk of Rising Sun Avenue in Philadelphia, when struck by an automobile driven by one John J. Burns, Jr. A bus of the Philadelphia Transportation Company, proceeding southwardly on Rising Sun Avenue, after having passed where the plaintiff was standing and having reached a point several hundred feet to the south of her, was struck on its right-hand side by the automobile operated by Burns who was proceeding north on Rising Sun Avenue on the wrong side of the highway. The Burns automobile, after glancing off the bus, moved on a diagonal further to the left, mounted the sidewalk on the west side of Rising Sun Avenue and struck the

[ 404 Pa. Page 232]

    plaintiff, causing the injuries for which she brought suit. The bus driver testified that he moved his bus toward the left, when he saw the Burns automobile coming toward him on the wrong side of the street, in order to avoid a possible head-on collision and also because he judged that, without moving to the left, there would not be sufficient street space on the right-hand side of his bus for the Burns automobile to pass between the bus and the west curb of Rising Sun Avenue. Burns admitted having fallen asleep at the wheel of his car which caused it to take the course it did.

The plaintiff sued both Burns and the Philadelphia Transportation Company jointly to recover damages for her injuries. At trial, the jury returned a verdict in the plaintiff's favor against Burns in the amount of $20,000 but found for the Philadelphia Transportation Company. The plaintiff moved for a new trial against the Philadelphia Transportation Company, which the court below refused. From the judgment entered on the verdict for the Philadelphia Transportation Company, the plaintiff has appealed.

In support of her motion for a new trial, the plaintiff assigned as error the refusal of the trial judge to affirm her second, third and fourth points for charge, which were as follows:

"2. 'Concurrently negligent' may be defined as 'combined negligence' of both defendants as a direct result of which the injury complained of was brought about. O'Malley v. P.R.T., 248 Pa. 292; Rodgers v. Yellow Cab, 147 A.2d 611 (1959).

"3. 'Concurrently negligent' can be further defined as follows: 'Where an original tortfeasor (wrongdoer) by his active negligence creates a dangerous condition and thereafter a second intervening negligent actor does not become appraised of such danger until his own negligence, added to that of ...


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