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JACKSON v. CAPELLO ET AL. (06/12/63)

June 12, 1963

JACKSON
v.
CAPELLO ET AL., APPELLANTS.



Appeals, Nos. 28 and 38, March T., 1963, from order of Court of Common Pleas of Dauphin County, June T., 1959, No. 1088, in cases of James Jackson v. William L. Capello et al. Order reversed.

COUNSEL

William S. Bailey, with him John B. Pearson, and Bailey, Pearson & Bolton, for appellant.

James H. Stewart, Jr., with him Wilhelm E. Shissler, and Nauman, Smith, Shissler & Hall, for appellant.

Arthur Berman, with him Compton, Handler, Berman & Boswell, for appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Watkins

[ 201 Pa. Super. Page 92]

OPINION BY WATKINS, J.

James Jackson the plaintiff-appellee, brought this action in trespass in the Court of Common Pleas of

[ 201 Pa. Super. Page 93]

Dauphin County against William L. Capello, Grace A. Capello, his wife, William Capello, a minor, Charles B. Weaver, Jr., Betty M. Weaver, his wife, and Charles Weaver, III, a minor, as defendants, for personal injuries alleged to have arisen on September 29, 1958 when the plaintiff claims he was shot in the left thigh by a bullet.

The minor defendants William and Charles had their respective fathers named guardians ad litem. The case was tried before Judge KREIDER of the court below and compulsory non-suits were entered in favor of the two mothers and it went to the jury as to the liability of the minor boys and their fathers. The jury entered a verdict in favor of the fathers individually, William L. Capello and Charles B. Weaver, Jr., as defendants, but found against them jointly as guardians ad litem of the minor defendants, in the sum of $2000.

The plaintiff filed a motion for a new trial and a motion to take off the non-suit granted in favor of the mothers. A motion was filed on behalf of the minor defendant, Charles Weaver, III, for judgment n.o.v. The court below denied the motion for judgment n.o.v.; denied the motion to remove the nonsuits; but granted the plaintiff's motion for a new trial on the ground that the verdict was inadequate and limited the new trial to the consideration of damages only.

The defendant Weaver appealed from the refusal of his motion for judgment n.o.v. and from the granting of a new trial on the ground of inadequacy limited to damages, and the defendant Capello has appealed from the granting of a new trial on the ground of inadequacy limited to damages.

On September 29, 1958 at about 4:45 p.m., the plaintiff was injured when struck by a bullet fired by the minor, William Capello, from a rifle owned by another minor, Charles B. Weaver, III. At the

[ 201 Pa. Super. Page 94]

    time William was 16 years of age and Charles was 12 years old. The boys having first secured permission from their fathers, were shooting targets in an area known as the Hollows, in the area of Swatara Township. At the time each of the boys owned a 22 caliber Marlin rifle which they had with them in the Hollows. While shooting in the general area, Weaver thought that the telescopic sight on his rifle was not accurately set and the younger boy's gun was transferred to Capello in order that the older boy might check the accuracy of the sight. A shot fired by Capello from ...


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