Appeal, No. 250, Jan. T., 1962, from judgment of Court of Common Pleas of Delaware County, March T., 1959, No. 552, in case of Helen G. Jamison, administratrix of estate of Frank Grochowski, deceased, v. Reese T. Ardes. Judgment reversed.
Alexander A. DiSanti, with him Berman, Richard & Brian, for appellant.
John F. Cramp, with him George J. McConchie, and Cramp & D'Iorio, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE COHEN
Appellant, Helen G. Jamison, the personal representative of the decedent's estate, appeals from the entry of judgment in favor of the defendant-appellee, Reese T. Ardes, following the lower court's refusal to grant her motion for a new trial.
The decedent, a man seventy-six years of age, met his death when he was struck by an automobile operated by appellee. The accident occurred after dark as decedent was crossing a road in front of his home.
In her action, appellant claims damages under both the Wrongful Death Act of 1855, April 26, P.L. 309, as amended, 12 PS § 1602, and the Survival Act (Section 603 of the Fiduciaries Act of 1949, April 18, P.L. 512, 20 PS § 320.603).
At trial, the jury returned a verdict for the appellee. Appellant's motion for a new trial was granted
by the court en banc on the ground that the trial judge had incorrectly charged the jury regarding the burden of proof in respect of contributory negligence. On appeal by the present appellee from the order granting a new trial, we affirmed the court below in an opinion by former Chief Justice CHARLES ALVIN JONES: Grochowski v. Ardes, 402 Pa. 614, 168 A.2d 327 (1961).
The retrial of this case again resulted in a verdict for the appellee. This time, however, the court en banc refused appellant's motion for a new trial and entered ...