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KOPAR v. MAMONE (ET AL. (01/04/66)

decided: January 4, 1966.

KOPAR
v.
MAMONE (ET AL., APPELLANT)



Appeals from judgments of Court of Common Pleas of Allegheny County, Oct. T., 1960, No. 847, and Oct. T., 1964, No. 2648, in cases of Lillian M. Kopar and William Kopar, her husband v. Gilbert R. Mamone, Gilbert R. Mamone, administrator of estate of William Mamone, deceased, and Yellow Cab Company of Pittsburgh; and Gilbert R. Mamone v. Lewis J. Wickman and Yellow Cab Company of Pittsburgh.

COUNSEL

David J. Armstrong, with him Dickie, McCamey & Chilcote, for appellants.

James J. Flaherty, with him Wirtzman, Sikov and Love, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 419 Pa. Page 602]

On October 23, 1958, Lillian M. Kopar sustained personal injuries while a passenger in a cab owned by Yellow Cab Company of Pittsburgh and being operated by its employee, Lewis J. Wickman. The cab came into collision with an automobile owned by Gilbert R. Mamone and operated by William Mamone.*fn* Mrs. Kopar and her husband filed an action of trespass against Gilbert Mamone, individually and as Administrator of the Estate of William Mamone, and against Yellow Cab, to recover damages sustained by them. Gilbert Mamone sought recovery of damages to his automobile in an action against Yellow Cab Company and Wickman. A voluntary non-suit was granted in favor of Gilbert R. Mamone, individually, as defendant, as it was clear that no agency existed.

The consolidated actions then proceeded to trial and at the close of all the evidence, final arguments and rulings on motions, the trial judge charged the jury as follows: "Now, in the case of Lillian M. Kopar and her husband, William Kopar, v. Gilbert R. Mamone, Administrator of the Estate of William Mamone, deceased, and Yellow Cab Company of Pittsburgh -- there are two defendants in that case -- you will return a verdict in that case in favor of the two plaintiffs against Yellow Cab Company of Pittsburgh alone. You will

[ 419 Pa. Page 603]

    find a verdict in favor of the defendant Gilbert R. Mamone, Administrator of the Estate of William Mamone, deceased, and then you will find a verdict in favor of the plaintiffs, Lillian M. Kopar and William Kopar v. Yellow Cab Company of Pittsburgh in an amount that you will determine.

"These will be the verdicts because I must rule as a matter of law that there is no negligence shown against the driver of the other car, William Mamone, and, therefore, I cannot submit that to you. Those will be the two verdicts. I will cover it again just before you go out so that we have it clear in our minds."

Thus, the lower court directed a verdict in favor of the plaintiffs in this action and the jury fixed the amounts of the damages. The defendants then filed a motion for new trial, which was refused, and judgments entered on the verdicts. These appeals followed.

Among the issues raised by the appellants is the question of the propriety of directing a verdict against the defendant in a trespass action for negligence which is founded upon oral testimony. The law on this point is clear; a trial judge may not direct a verdict against a defendant in a trespass case where the determination of negligence was founded upon oral testimony. In Dorn v. Leibowitz, 387 Pa. 335, p. 340, 127 A.2d 734 (1956), we said: "From time immemorial, it has been the province of the jury in trespass cases, where oral testimony is concerned, to pass upon the credibility of witnesses, even though uncontradicted by defendant witnesses or even though the defendant introduces no testimony at all. In this case, the defendant called only one witness, a police officer, whose testimony, it would seem, did not in any substantial measure ...


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