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TONIK v. APEX GARAGES (03/25/71)

decided: March 25, 1971.

TONIK, APPELLANT,
v.
APEX GARAGES, INC., APPELLANT



Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1964, No. 4758, in case of Frances Tonik v. Apex Garages, Inc.

COUNSEL

C. William Kraft, III, with him Beasley, Albert, Hewson & Casey, for plaintiff.

Victor L. Drexel, with him Richard J. van Roden, and Pepper, Hamilton & Scheetz, for defendant.

Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Eagen

[ 442 Pa. Page 374]

On January 21, 1963, Miss Frances Tonik was injured when she fell while walking on the public sidewalk located in front of the business premises of Apex Garages, Inc. (Apex), on Broad Street in Philadelphia. She sued Apex for damages, and at trial was awarded a verdict of $20,000 by the jury. Apex filed motions for judgment notwithstanding the verdict or, in the alternative,

[ 442 Pa. Page 375]

    a new trial. The court below denied the motion for judgment n.o.v., but directed that Miss Tonik file a remittitur in the sum of $10,000 or suffer a new trial. Miss Tonik refused to file the remittitur and filed an appeal from the new trial order.*fn1 Defendant Apex filed an appeal from the denial of judgment n.o.v.*fn2

Appeal of Apex (No. 660)

Apex contends: (1) The evidence was insufficient, as a matter of law, to establish that negligence on its part caused Miss Tonik's injuries; and, (2) In any event, she was guilty of contributory negligence, as a matter of law, which bars recovery. We disagree on both counts.

In evaluating the correctness of the order denying judgment n.o.v., it is fundamental that the evidence must be read in a light most favorable to the verdict winner, and all conflicts therein must be resolved in her favor, and also she must be given the benefit of every reasonable inference arising therefrom. Cobosco v. Life Assurance Company, 419 Pa. 158, 213 A.2d 369 (1965). So read, the record discloses the following.

On the day involved, Miss Tonik, accompanied by her sister, was walking along the sidewalk on the east side of Broad Street. Although the weather was cloudy and cold, there had been no recent precipitation. The two walked from their home, some distance removed, ...


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