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AUSTIN ET AL. v. HARNISH (04/03/74)

decided: April 3, 1974.

AUSTIN ET AL., APPELLANTS,
v.
HARNISH



Appeal from order of Court of Common Pleas of Lancaster County, Oct. T., 1970, No. 1, in case of Ronald Austin and Jean Austin and John Begley and Arlene Begley v. Catherine Harnish.

COUNSEL

Allen L. Feingold, for appellants.

S. R. Zimmerman, III, with him Geisenberger, Zimmerman, Pfannebecker & Gibbel, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J.

Author: Cercone

[ 227 Pa. Super. Page 200]

This is an appeal from the lower court's refusal to grant plaintiffs' motion for a new trial based on general allegations that the verdict was against the evidence, the weight of the evidence and the law. The main issue as we view it is whether or not the verdict was inadequate.

Plaintiffs' car was struck from the rear by the car of defendant, Catherine Harnish, while both vehicles were in a line of heavy traffic that had stopped for a red light.*fn1 Plaintiff, John Begley, was the driver and plaintiff, Ronald Austin, was the passenger and also the owner of the car that was struck. Immediately after the collision, plaintiffs satisfied themselves that some fragile gasoline cylinders which were in the trunk of their car and which were described as "particularly susceptible to breakage from any kind of an impact,"

[ 227 Pa. Super. Page 201]

    were undamaged, and they then continued on their way. Subsequently plaintiffs instituted this suit, wherein they alleged that Mr. Austin's automobile had been damaged and that they had both been injured.*fn2

The trial evidence established that each of the plaintiffs had been treated by or consulted with Dr. Mauriello and two other physicians. Austin alleged his medical expenses were $470 and John Begley testified that his medical expenses were $404. Dr. Mauriello was the only witness called by the plaintiffs and he testified that the charge for his services was $265 for Austin and $235 for Begley. Austin testified that the cost to repair his car was $250, but he did not produce any evidence from a repairman to support this testimony. Both plaintiffs sought recovery for loss of wages and compensation for pain and suffering. The total cost of repairs to the Harnish vehicle was $1.20, the cost of two headlights.

Before returning a verdict, the jury inquired of the trial court if it could find defendant Harnish negligent but still not award any damages to the plaintiffs. The trial judge instructed the jury, in effect, that they could do so only if they disbelieved plaintiffs as to their expenses and their claims for pain and suffering, or if they found that these damages and injuries arose from independent causes. After the court's instructions, the jury deliberated further and returned with verdicts in favor of plaintiffs in the amount of $265 for Austin and $235 for Begley.

The Supreme Court, in Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 420-21 (1953), quoting from Coleman v. Pittsburgh Coal Co., 158 Pa. Superior Ct. 81 (1945), stated: "The guide for determining whether a ...


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