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MERKEL v. SCRANTON. (09/12/63)

September 12, 1963

MERKEL, APPELLANT
v.
SCRANTON.



Appeal, No. 1, Feb. T., 1963, from judgment of Court of Common Pleas of Lackawanna County, Sept. T., 1960, No. 2130, in case of Alberta Merkel v. City of Scranton et al. Judgment n.o.v. removed, verdict reinstated and judgment directed to be entered thereon.

COUNSEL

Gerald G. Dolphin, for appellant.

Richard S. Compagna, Assistant City Solicitor, with him H. R. Van Deusen, Jr., City Solicitor, for appellee.

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

Author: Watkins

[ 202 Pa. Super. Page 16]

OPINION BY WATKINS, J.

This is an appeal from the entry of judgment non obstante veredicto by the Court of Common Pleas of Lackawanna County in favor of the City of Scranton, the defendant-appellee, and against Alberta Merkel, the plaintiff-appellant, after a verdict of a jury in favor of the plaintiff and against the City of Scranton.

The plaintiff on August 24, 1960 was a passenger in an automobile owned by her and driven by her son, Paul Merkel. The car was involved in a collision with a fire truck operated by firemen, employees of the City of Scranton. As a result of this collision a trespass action was instituted against the City by the plaintiff for damages to her car and personal injuries. The City of Scranton joined the plaintiff's son, Paul Merkel, as an additional defendant. The jury returned a verdict in favor of the plaintiff in the amount of $1972.54 against both defendants. Motions were filed on behalf of the City for judgment n.o.v. and for a new trial. The court below entered judgment n.o.v. The plaintiff appealed.

The court below sets forth the facts upon which it based its disposal of this matter to be as follows: "Viewing the evidence in the light most favorable to the verdict-winner, as we are required to do in considering a motion for judgment n.o.v., Ason v. Leonhart, 402 Pa. 312 (1960), the following facts appear:

[ 202 Pa. Super. Page 17]

"On August 24, 1960, at 8:00 p.m., Alberta Merkel and her son, Paul Merkel, visited the home of her sister. After leaving her sister's house, Mrs. Merkel asked her son if he would take her for a ride to Towers Discount Store (a large department store recently opened on Keyser Avenue in North Scranton) and he assented. Thereupon, with Paul Merkel at the wheel and Mrs. Merkel a passenger in the front seat, they proceeded westerly on Luzerne Street and approached the intersection of Luzerne Street and South Main Avenue, where the traffic light at the intersection was in their favor. Paul Merkel looked neither left nor right on South Main Avenue as he entered the intersection. In the meantime, a fire department truck, manned by employees of the City of Scranton, was traveling in a southerly direction on South Main Avenue in response to an alarm and, as the jury found, did not sound an audible signal as a warning to other vehicles in the vicinity. The vehicles collided in the intersection and plaintiff was injured and her automobile damaged."

It is necessary, in view of the jury's verdict, and our discussion herein, to have a complete picture of the physical facts and the testimony that supports the jury's verdict. On the day in question, at about 10:00 p.m., the weather was clear when the Merkel car approached, in a westerly direction, the intersection of Luzerne Street and South Main Avenue. Luzerne Street runs east and west and Main Avenue north and south. The green light favored the oncoming Merkel car and he proceeded into the intersection and was struck by the fire truck at the rear right fender after he had crossed more than fifty per cent of the intersection. There was testimony on behalf of the plaintiff that the fire truck was traveling fifty miles per hour. The testimony of Paul Merkel was that he was traveling from 15 to 25 miles per hour.

[ 202 Pa. Super. Page 18]

The firehouse is located on Division Street which is not a through street but intersects with the east side of South Main Avenue, one block north of Luzerne Street. The firehouse is located about a quarter of a block west of the intersection of Division Street with South Main Avenue. The fire truck left the firehouse, made a right-hand turn into Main Avenue and continued southward to Luzerne Street where the collision occurred.

The testimony of the plaintiff was as follows: "There was no siren at all on that fire truck, if there was I could have heard, it, because our windows were all down in the car, it was the 24th of August and it was a beautiful night.It was clear and there was no reason why we couldn't have heard the siren." Paul Merkel testified as follows: "Q. You didn't hear any sound or - ? A. I didn't hear nothing, nothing at all. Q. Were your windows open or closed? A. They were opened. Q. Specifically, did you hear a fire ...


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