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GIRARD TRUST CORN EXCHANGE BANK v. PHILADELPHIA TRANSPORTATION COMPANY. (03/19/63)

March 19, 1963

GIRARD TRUST CORN EXCHANGE BANK, APPELLANT,
v.
PHILADELPHIA TRANSPORTATION COMPANY.



Appeals, Nos. 383, 384, 418, 419, Jan. T., 1962, and Nos. 74 and 75, Jan. T., 1963, from orders of Courts of Common Pleas Nos. 1 and 2 of Philadelphia County, March T., 1958, Nos. 1406 and 1407, in case of Girard Trust Corn Exchange Bank, Executor of estate of James T., Haviland, deceased, and Marjorie Arny and Nancy McCowan v. Philadelphia Transportation Company, Robert E. Lee and Lumbermans Mutual Casualty Co. Orders affirmed; reargument refused May 6, 1963.

COUNSEL

John V. Lovitt, with him George E. Beechwood, and Beechwood & Lovitt, for plaintiffs.

H. Francis DeLone, with him Thomas C. McGrath, Jr., and Dechert, Price & Rhoads, for transportation company, defendant.

Lynn L. Detweiler, for individual and insurer, defendants.

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

Author: Eagen

[ 410 Pa. Page 532]

OPINION BY MR. JUSTICE EAGEN

James T. Haviland, sixty-seven years of age, a passenger in an automobile owned by the Lumbermans Mutual Casualty Company (Lumbermans) and operated by one Robert E. Lee, was killed when the automobile was struck by a bus owned by the Philadelphia Transportation Company and operated by one of its employees.

The plaintiffs, Marjorie Arny and Nancy McCowan, daughters of Haviland, instituted a wrongful death action against the Philadelphia Transportation Company. The plaintiff, Girard Trust Corn Exchange Bank, Executor of Haviland's estate, sued the same defendant under the Pennsylvania Survival Statute. Lumbermans and Lee were joined as additional defendants in both actions, which were consolidated for the purposes of trial. The jury returned a verdict in favor of the plaintiffs and against the original defendant, the Philadelphia Transportation Company alone.*fn1 The award

[ 410 Pa. Page 533]

    in the wrongful death action was $35,300 and in the survival action $132,210.

Post trial, the plaintiffs filed a motion to modify and increase the verdicts, which the court below denied. The defendant, the Philadelphia Transportation Company, filed a motion for a new trial and judgment non obstante veredicto. The court refused judgment n.o.v. but granted a new trial. All parties involved appealed.

The collision occurred at 9:30 o'clock at night at the intersection of 22nd Street and the Benjamin Franklin Parkway in the City of Philadelphia. Lumbermans' automobile, operated by Lee, was proceeding west in the most southerly lane of the north tier of the parkway. This is a one-way thoroughfare for westbound traffic and it is 80 feet in width. The bus was traveling south on 22nd Street, which was for one-way southbound traffic. Twenty-second Street is 50 feet wide and there is a single set of transit trolley car tracks located in the center of the roadway. The intersection was controlled by a traffic light and the testimony at trial was in sharp conflict as to which vehicle was proceeding on the green light. The front of the bus struck the right side of Lumbermans automobile, when the latter vehicle was more than two-thirds through the intersection. The force of the impact threw Lumbermans' ...


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