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KOELLE v. PHILADELPHIA ELECTRIC COMPANY (05/17/71)

decided: May 17, 1971.

KOELLE
v.
PHILADELPHIA ELECTRIC COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1964, No. 1513, in case of Frederick Koelle v. Philadelphia Electric Company.

COUNSEL

John R. McConnell, with him David S. Markson and Morgan, Lewis & Bockius, for appellant.

Thomas H. Goldsmith, with him Goushian, Mooradian & Goldsmith, for appellee.

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

Author: O'brien

[ 443 Pa. Page 36]

Appellee, Frederick Koelle, after a jury trial, won a verdict of $15,000 against appellant, Philadelphia Electric Company. Appellant's motions for a new trial and for judgment n.o.v. were denied, and this appeal followed the entry of judgment on the verdict of the jury.

The court below fairly summarized the facts in its opinion as follows:

"Plaintiff was one of three young men, each riding his own motorcycle north on MacDade Boulevard in the vicinity of Glenolden, Delaware County, at approximately 10:30 or 11:00 p.m. on the evening of June 25, 1962. MacDade Boulevard is a highway of two northbound

[ 443 Pa. Page 37]

    and two southbound lanes, the midline of which is marked only by a broken white line without any constructed medial divider.

"The trio halted behind a pair of automobiles for a traffic light at South Avenue, an intersecting street. The light turned green, one of the cars turned off east on South Avenue, the other continued north in the innermost northbound lane of MacDade Boulevard, and plaintiff followed in the same lane. His two companions were still farther back. At a point the plaintiff described as three-quarters of a block, one of his companions as seventy-five to one hundred yards, and a policeman investigator as two squares or four to five hundred feet north of the intersection, plaintiff saw the car in front of him 'veer sharply' to the left, across the marked midline, into the nearest southbound lane, to pass around what plaintiff suddenly saw to be an excavation across the highway in the lane he was travelling, with a mound of dirt completely blocking the other northbound lane to plaintiff's right and extending up on the sidewalk. Four or five feet of the highway surface closest to the midline in the lane of plaintiff's travel remained unbroken. Southbound traffic appeared immediately after the preceding automobile had made its way around the obstruction, and plaintiff saw no way to follow, left of the obstacle, without risking collision with one of the cars approaching in the opposite direction.

"He braked, but felt his motorcycle 'fishtail' or weave beneath him, felt it also lose traction on the grit strewn on the road surface south of the hole, so that he was unable to stop, and on the brink of the excavation jumped straight up off the motorcycle. The motorcycle went into the hole, but plaintiff cleared the obstruction, landing on his ...


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