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CHURCHILL ET AL. v. EAKIN ET AL. (03/31/75)

decided: March 31, 1975.

CHURCHILL ET AL., APPELLANTS,
v.
EAKIN ET AL.



Appeals from judgments of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1971, Nos. 1682, 1756 and 1757, in case of Thomas E. Churchill, III, Peggy McMonigle and Shirley Kuhn, a minor, and Robert Kuhn, as parent and in his own right v. Gladys Eakin and Marvin F. Caldwell, Defendants, v. Michael C. Polimeni, Additional Defendant.

COUNSEL

Joseph M. Zoffer, with him Martino, Ferris & Zoffer, for appellants.

Daniel J. Weis, with him Weis and Weis, for appellee, Eakin.

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

Author: Van Der Voort

[ 233 Pa. Super. Page 468]

On the evening of February 13, 1969, one Gladys Eakin was driving in a westerly direction on a secondary road. She stopped at the stop sign at an intersection with a main highway (Route 51 south of Pittsburgh). She looked right and left; to the left she saw traffic 800 feet down the highway. She then proceeded to negotiate a right turn into the north bound passing lane of Route 51, preparatory to making a prompt left turn from the highway. After she had traveled four car lengths on Route 51 she became aware of the vehicle of one Michael Polimeni bearing down on her in the same lane. The Polimeni car swerved into the slower curb lane, passing the Eakin car on its right, striking the latter and going out of control. Polimeni's car then veered into the curb, rebounded, crossed the highway, and came to rest in the south bound passing lane whereupon it was struck by the automobile of one Marvin Caldwell and his wife, traveling southwardly. Appellants herein were passengers in the Polimeni vehicle.

Litigation has been extensive, with suits having been brought by (1) the Caldwells against Eakin and Polimeni, (2) Polimeni against Eakin and Caldwell, with Eakin counter-claiming, and (3) the three appellant passengers of Polimeni against Eakin and Caldwell, with Eakin bringing in Polimeni as an additional defendant. Thus there were six plaintiffs, Polimeni assuming that posture in one case, as well as being defendant in Eakin's counter-claim

[ 233 Pa. Super. Page 469]

    and additional defendant in appellants' cause of action.

Trial was begun on Monday, May 15, 1972. Verdicts were rendered as follows: in appellants' cases against Eakin and Caldwell, wherein Polimeni is additional defendant, Polimeni "guilty", Eakin, "not guilty" and Caldwell "not guilty"; in the Caldwells' case against Eakin and Polimeni, Eakin "not guilty" and Polimeni "guilty"; in Polimeni's case against Eakin and Caldwell, each defendant "not guilty"; and in Eakin's counter-claim against Polimeni, defendant "guilty". Counsel did not wish the jury polled. The Court molded the verdict and the case of Caldwells as plaintiffs was severed for determination of damages. Appellants herein moved timely for new trial and judgment n.o.v., both of which were denied by an able opinion of Judges Fiok and Finkelhor. Appellants appeal from the judgment entered in favor of Eakin in the case in which she is one of the defendants.

Appellants first raise the argument that the Court should not have permitted the merits of Eakin's counterclaim against Polimeni to reach the jury inasmuch as Eakin should be held to be contributorily negligent as a matter of law.*fn1 The issue clearly is not one to be raised by appellant-passengers, as they were not parties in interest in the cause of action which gave rise to said counter-claim. They have no standing to contest the verdict in the case of Polimeni against Eakin. Such a question could be raised by Polimeni, but he has not appealed.

Appellants' second argument is that the trial court refused to charge the jury on the law of "The Vehicle Code", by reciting specific ...


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