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PASCALE v. SIMMONS (03/13/62)

March 13, 1962

PASCALE, APPELLANT,
v.
SIMMONS, APPELLANT.



Appeals, Nos. 82, 83, 84, 85, 86 and 87, Jan. T., 1962, from order of Court of Common Pleas of Delaware County, March T., 1960, No. 2559, in case of Vincent Pascale v. Charles Simmons, Thomas Fizzano, Anthony Fizzano et al. Order reversed and verdict reinstated.

COUNSEL

William C. Archbold, Jr., with him Kearns, Archbold and Maffei, for plaintiff.

Bernard P. Carey, Jr., with him James A. McGoldrick, and Johnson, Fox, McGoldrick & Prescott, for defendants.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Musmanno

[ 406 Pa. Page 477]

OPINION BY MR. JUSTICE MUSMANNO

On July 3, 1958, Vincent Pascale was sitting in his Pontiac automobile on Edgemont Avenue in Parkside, Delaware County, waiting for a truck (pick-up International) ahead of him to move forward as it in turn waited for a station wagon preceding it to enter into a parking lot off Edgemont Avenue. While this was transpiring a truck (Ford flatbed) operated by Charles Simmons for the Fizzano Brothers violently struck Pascale's car in the rear. The impact sent Pascale's car smashing into the rear of the International pickup truck which then was pushed forward until it came within inches of the station wagon. The front bumper of the Ford truck hit the Pontiac with such momentum that it became entangled in the trunk of the Pontiac and the two vehicles, now welded into one, engaged the International truck from the rear and threw it forward thirty feet.

[ 406 Pa. Page 478]

When the four-car parking, striking, entangling, smashing and pushing operation finally came to an end, Pascale's car was in a state of near demolition and Pascale himself had undergone serious nervous and bodily mutations. He brought suit against Simmons and his employers, the Fizzano Brothers. At the trial the defendants moved for a compulsory non-suit which was refused. The jury later brought in a verdict for $11,355.62 in favor of the plaintiff against all the defendants. The defendants moved for judgment n.o.v. and a new trial. The court refused the motion for judgment n.o.v., but granted a new trial. The plaintiff appealed from the order of a new trial and the defendants appealed from the refusal of judgment n.o.v.

In that posture, the case is now before us.

A paradox is confronted at the outset in the fact that although the trial judge orders a new trial he states that he erred in not granting a non-suit. If the circumstances dictated a non-suit why then a new trial? But that is only one of the strange things in this case. The trial judge states further that he erred in charging the jury. His error, however, turns out to be the granting of a new trial on an assumed error because study of the charge shows it to be (to the credit of the judge) without error.

In order to unravel this tangled skein of error and alleged error it is necessary to go back to Edgemont Avenue on July 3, 1958. When the four cars involved in the mishap of that day ceased moving like the bellows of a rapidly closed accordion, the driver of the Ford truck, Charles Simmons, announced to nobody in particular but to the world in general: "I am sorry but my brakes failed me." Because of this statement, which was testified to by three persons, the judge developed the idea that the plaintiff had ...


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