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WEINSTEIN ET AL. v. PHILADELPHIA TRANSPORTATION COMPANY (09/15/72)

decided: September 15, 1972.

WEINSTEIN ET AL., APPELLANTS,
v.
PHILADELPHIA TRANSPORTATION COMPANY



Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1964, No. 3818, in case of Mark R. Weinstein et al. v. Philadelphia Transportation Company and Emil Forney.

COUNSEL

Gerald J. Haas, for appellants.

Edward Greer and A. Toensmeirer, with them R. David Bradley, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J. Wright, P. J., Watkins and Jacobs, JJ., dissent.

Author: Spaulding

[ 222 Pa. Super. Page 449]

Appellant Mark R. Weinstein*fn1 appeals from the denial of his motions for a new trial and for judgment n.o.v. following a jury verdict in favor of appellees Philadelphia Transportation Company and Emil Forney, the additional defendant. The action arose from an accident involving a P.T.C. bus, on which appellant was a passenger, and Forney's automobile which he was operating. The bus struck the left rear of Forney's auto as he was making a left-hand turn across the roadway into a driveway. The collision was slight, with damage to the auto being confined to the left rear fender and taillight.

The evidence as to which of the appellees was at fault in causing the accident was directly contradictory.

[ 222 Pa. Super. Page 450]

The collision occurred on a two lane highway, which had one lane for traffic in each direction, bordered by dirt shoulders. Forney testified that he was making a left-hand turn across the road into a driveway, when the bus hit him from the rear. He stated that he had properly signaled the turn well in advance. P.T.C.'s bus driver contradicted this testimony and placed the blame for the accident on Forney. He testified that the Forney auto, which he was following, started off the highway onto the dirt shoulder to the right as if to park. As the bus continued along the paved highway and was starting to pass the car, he claims that Forney suddenly, without signaling in any way, turned left from the shoulder into the bus' path causing the collision.

Both Forney and the P.T.C. driver stated that the impact was very slight and that nobody on the bus, including appellant, complained of being injured at the time of the accident. Subsequently, appellant sought medical attention. He claims he suffered back injuries (or at least aggravation of a pre-existing back condition) from the accident. However, testimony presented at trial indicated appellant has been involved in several unrelated accidents and suffered from osteochondritis,*fn2 probably unrelated to this accident. There was also evidence indicating that hospital and doctors' records involved here had been altered.

While the record here evokes considerable skepticism about the extent of appellant's injuries from this accident, indicating that a retrial of the case may very

[ 222 Pa. Super. Page 451]

    well result in another verdict for appellees, the trial judge erred in charging the jury. This error requires reversal and a new trial. Appellant requested the following point for charge: "5. If you find that Mark was injured in this accident, I direct that you find in favor of him and his father and then the only questions will be the amount of damages to be awarded to them and whether the bus driver or Mr. Forney or both were negligent." (N.T. 334) This ...


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