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REIST ET VIR v. MANWILLER (12/11/74)

decided: December 11, 1974.

REIST ET VIR, APPELLANTS,
v.
MANWILLER



Appeal from order of Court of Common Pleas of Berks County, April T., 1970, No. 255, in case of Stella M. Reist and David H. Reist, her husband v. Joel H. Manwiller.

COUNSEL

E. Silva, with him Jack E. Feinberg, for appellants.

Robert I. Cottom, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Van der Voort, J., dissents.

Author: Hoffman

[ 231 Pa. Super. Page 445]

Stella M. Reist and David H. Reist, her husband, plaintiffs below, appeal from the court's denial of their motion for a new trial.

[ 231 Pa. Super. Page 446]

On November 28, 1969, wife-plaintiff was involved in an automobile accident with the appellee, at the intersection of Perkiomen Avenue and Spruce Street in Reading, Pennsylvania. Mrs. Reist testified that she was traveling approximately twenty to twenty-five miles per hour; that when she was two to five feet from the intersection she looked left and observed defendant's car one hundred feet from the intersection; that she looked left upon entering the intersection and observed defendant thirty feet away; that she continued to look left until she was halfway through the intersection; that defendant's vehicle struck her automobile on the left rear side when she was two feet beyond the intersection. Defendant-appellee admits to having struck Mrs. Reist's car. He testified, however, that he stopped at the intersection, but found his vision blocked by parked cars. Intending to turn left, he then moved slowly into the intersection, when his passenger stated "look out, there is a car coming." At that point, he testified that he turned left and sideswiped Mrs. Reist's automobile.

Mrs. Reist underwent an operation for cervical radiculitis as a result of spinal injuries sustained in the accident. Dr. Johnson, the neurosurgeon who performed the operation, testified that he discharged Mrs. Reist from treatment on March 16, 1970, and that she was fully recovered and symptom free as of that date. The trial judge limited Mrs. Reist's recovery for pain and suffering, and Mr. Reist's recovery for loss of consortium, to the period from November 28, 1969, the date of the accident, to March 16, 1970.

The jury awarded a verdict of $100 for Mrs. Reist and $1600 for Mr. Reist. Actual medical expenses and lost wages amounted to over $1600. Appellants filed a motion for a new trial in which they alleged that the court erroneously submitted the question of contributory negligence to the jury and that the trial judge erred in prohibiting testimony as to pain and suffering,

[ 231 Pa. Super. Page 447]

    and loss of consortium after March 16, 1970, and in instructing the jury that no damages for pain and suffering, and loss of consortium after March 16, 1970, could be awarded.

Appellants contend that the court should have instructed the jury specifically that Mrs. Reist was not contributorily negligent as a matter of law. Contributory negligence is normally a question for the jury, and thus the trial judge may decide the issue only in the clearest of cases. Heffernan v. Rosser, 419 Pa. 550, 215 A.2d 655 (1966); Walker v. Martin, 214 Pa. Superior Ct. 287, 257 A.2d 619 (1969). It is proper for a trial judge to submit the question to the jury ". . . if there is any evidence upon the consideration of which reasonable minded individuals ...


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