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RUTTER v. MORRIS (06/14/68)

decided: June 14, 1968.

RUTTER
v.
MORRIS, APPELLANT



Appeal from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1961, No. 2184, in case of Clare Rutter, a minor, by Richard Rutter, her father and natural guardian, and Richard Rutter, in his own right, v. Pearl Morris.

COUNSEL

Joseph G. Manta, with him James M. Marsh, and LaBrum and Doak, for appellant.

John Dorfman, with him Dorfman, Pechner, Sacks & Dorfman, for appellees.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 212 Pa. Super. Page 467]

This is an appeal by defendant (appellant) Pearl Morris, from an order of Court of Common Pleas No. 7 of Philadelphia County granting a new trial restricted to the issue of damages because of inadequacy of the jury verdict.

On November 29, 1961, Clare Rutter, the minor plaintiff (appellee) sustained injuries as the result of an accident at Moyamensing Avenue and McClellan Street in Philadelphia, Pennsylvania. Appellant was driving her automobile south on Moyamensing Avenue at approximately 20 miles per hour. The evidence is conflicting as to whether the appellant's car struck the appellee or if she ran into the side of it; whether the appellee stepped into the street at a crosswalk or darted out from between two parked trucks. The evidence is not clear as to whether the appellant was negligent and the appellee contributorily negligent.*fn1 It

[ 212 Pa. Super. Page 468]

    was uncontradicted, however, that the appellee did not look to her left until she was in the middle of defendant's traveling lane and that the defendant did not sound her horn.

The appellee sustained a compound fracture of the left ankle requiring hospitalization. A skin graft was performed and the ankle was recast. Dr. Irvin Stein, who testified for the plaintiffs, stated that the operation achieved "a remarkably good result" and concluded that "the skin looks quite good." He further testified that the appellee would continue to feel aches in her ankle in cold weather and that a "little bit of wobble remained."

At a jury trial a verdict of $500 was returned in favor of the minor appellee and $2163 in favor of her father and guardian.*fn2 The appellee filed a motion for a new trial limited to damages alone. The appellant filed motions for a judgment n.o.v. and a general new trial. Appellant's motions were denied and a new trial limited to damages was awarded.

[ 212 Pa. Super. Page 469]

Appellant's appeal raises three grounds. First, it is contended that the trial court should have granted a judgment n.o.v. for the appellant because there was no evidence of her negligence. The law is well established that "on appeal from the denial of a motion for judgment n.o.v., the evidence must be viewed in the light most favorable to the verdict winner. Evidence supporting the verdict is considered and the rest is rejected. Conflicts in testimony are resolved in favor of the verdict winner." Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968); e.g., Connolly v. Philadelphia Page 469} Transportation Co., 420 Pa. 280, 216 A.2d 60 (1966). In the instant case, the evidence was clearly ...


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