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CARMINATI v. PHILADELPHIA TRANSPORTATION COMPANY (01/02/62)

January 2, 1962

CARMINATI
v.
PHILADELPHIA TRANSPORTATION COMPANY, APPELLANT.



Appeals, Nos. 318 and 319, Jan. T., 1961, from judgments of Court of Common Pleas No. 6 of Philadelphia County, March T., 1956, No. 9336, in case of Jean Carminati, a minor, et al. v. Philadelphia Transportation Company. Judgments affirmed.

COUNSEL

Philip Price, with him John P. Mason, Bernard J. Smolens, and Barnes, Dechert, Price, Myers & Rhoads, for appellant.

James E. Beasley, with him Beasley & Ornsteen, for appellees.

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

Author: Musmanno

[ 405 Pa. Page 501]

OPINION BY MR. JUSTICE MUSMANNO.

On September 27, 1954, Jean Carminati, 10 years of age, living in Glenside, Montgomery County, started home from school, carrying in her hand a box of toys. She proceeded south on Easton Road and as she approached Keswick Avenue which intersects Easton, running east and west, she observed a street car stationary on Keswick, west of Easton Road. A green light at the northeastern corner of the intersection invited her to cross Keswick, but when she had passed beyond half of the width of that street, the street car unwarningly started forward and struck her, inflicting serious injuries.

Her parents in their own right and in her behalf brought suit against the Philadelphia Transportation

[ 405 Pa. Page 502]

Company, and at the ensuing trial the jury returned verdicts in the sum of $11,199.45 for the parents and $79,500 for the child. The defendant moved for judgment n.o.v. and a new trial. The Court reduced the verdict of the parents to $4699.45 (which reduction was accepted by the parents) and refused both motions. The defendant appealed. It no longer seeks judgment n.o.v. and is content to have a new trial on the asserted basis that the verdict was against the weight of the evidence and that the amounts of the verdicts were excessive.

The record does not justify a long discussion on the question as to whether the verdict offended against the weight of the evidence. Jean Carminati's testimony was clear and unequivocal that she was moving across Keswick Avenue under the protection of a green light when the street car ran her down. A witness to the accident, Kathryn Leary, testified that when Jean Carminati arrived at Keswick the light was green for traffic moving on Easton Avenue and red for traffic (including the street car) moving on Keswick. There were some variations in this statement but it was for the jury to affirm, reconcile or reject the witness's testimony.

The defendant argues that the mishap on Keswick Street was the result of the child running into the street car, instead of the street car running into the child. To support this argumentation it points to the circumstance that the child's box of toys was found on the north or left side of the track. This line of reasoning presupposes that the box fell with the child, but it is entirely consistent with the possibilities that when the child and the street car came together, the violence of the impact sent the box flying out of the girl's hands to the left of the car.

Then the defendant company emphasizes that the motorman testified he did not see anyone on the track

[ 405 Pa. Page 503]

    ahead of him prior to the collision. But it is apparent that the jury did not believe the motorman when he said this, nor can we say a wholly impartial evaluation of the testimony did not accompany the jury's deliberations and conclusions here. In fact, the jury could decide, and apparently did so decide, that it was precisely the ...


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