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RAFFAELE v. ANDREWS. (03/21/62)

March 21, 1962

RAFFAELE, APPELLANT,
v.
ANDREWS.



Appeal, No. 97, April T., 1961, from judgment of Court of Common Pleas of Allegheny County, July T., 1956, No. 2936, in case of Carmen Raffaele v. Herman L. Andrews et al. Judgment affirmed.

COUNSEL

Gustav W. Wilde, with him Burgwin, Ruffin, Perry & Pohl, for appellant.

David B. Fawcett, J., with him Dickie, McCamey, Chilcote & Robinson, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Watkins

[ 197 Pa. Super. Page 369]

OPINION BY WATKINS, J.

This is an appeal from the judgment of the Court of Common Pleas of Allegheny County, in a trespass action, entered after a jury verdict, in favor of the plaintiff-appellant, Carmen Raffaele, and against Herman L. Andrews, one of the defendants and the appellee

[ 197 Pa. Super. Page 370]

    herein, in the amount of $873; and from the order of the court below refusing the appellant's motion for a new trial.

The facts surrounding the accident, which gave rise to this litigation, are as follows: On September 2, 1955, the plaintiff-appellant, Carmen Raffaele, entered the parking lot of the corporate defendant, Allegheny County Fruit and Vegetable Growers Association, Inc., and proceeded to shop at their store. Upon returning to his automobile, at which time, Herman L. Andrews, the individual defendant, entered the parking lot and, while maneuvering his automobile to park, struck the automobile of the appellant and forced it backwards, causing the injury to appellant's leg. The corporate defendant employed an attendant for the lot who was present at the time of the accident. However, he was not engaged in directing the individual defendant to a parking place. On trial of the matter the jury returned a verdict in favor of the appellant and against the individual defendant alone, in the amount of $873, the amount testified to as the appellant's out-of-pocket expenses.

At the conclusion of the individual defendant's case, the attorney for the corporate defendant made a motion for compulsory non-suit and for binding instructions. The trial judge refused the motions and the corporate defendant rested its case without introducing any evidence, although he informed the plaintiff and the court that he had witnesses in the courtroom who were available to be called.

It is alleged by the appellant that the trial court committed error by refusing to permit counsel for the appellant to argue to the jury regarding any presumption which might arise from the failure of the corporate defendant to call his witnesses and also the ...


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