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ANN MILLER v. CHECKER YELLOW CAB COMPANY BETHLEHEM (11/26/75)

decided: November 26, 1975.

ANN MILLER, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF EARL MILLER
v.
CHECKER YELLOW CAB COMPANY OF BETHLEHEM, INC., ET AL., APPELLANTS, AND BELL TELEPHONE COMPANY OF PENNSYLVANIA



COUNSEL

Victor F. Cavacini, Snyder, Doll & Schantz, Allentown, for appellants.

George A. Hahalis, Bethlehem, for appellee, Ann Miller.

John D. DiGiacomo, Teel, Stettz, Shimer & DiGiacomo, Easton, for appellee, Bell Telephone Co. of Pa.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., concurs in the result. Jones, C. J., dissents.

Author: Nix

[ 465 Pa. Page 84]

OPINION

This appeal arises from an Action in Trespass brought by Mrs. Ann Miller on behalf of her deceased husband for personal injuries sustained by him during his lifetime.*fn1 The defendants in that action, Checker Yellow Cab Company of Bethlehem, Inc., Central Motoramp Garage Company, Inc., and Paul Pacheco, appellants herein, joined the Bell Telephone Company of Pennsylvania as an additional defendant. The matter proceeded to trial before a jury and a verdict was returned in favor of Miller and against the appellants and Bell Telephone Company of Pennsylvania in the sum of $11,860.55. Thereafter, the trial court entered an order granting a judgment n. o. v. to Bell Telephone Company of Pennsylvania and denied appellants' post-trial motions. The Superior Court affirmed per curiam. We granted allocatur to review the propriety of the grant of judgment n. o. v.

[ 465 Pa. Page 85]

    in favor of Bell Telephone Company of Pennsylvania. For the reasons that follow, we now vacate the order entering the judgment n. o. v. and remand the cause to the trial court for entry of a judgment on the verdict.

In considering a motion for judgment n. o. v., the evidence together with all reasonable inferences therefrom is considered in the light most favorable to the verdict winner. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967).

The appellee, Mrs. Miller, presented evidence to establish that a telephone wire extended across High Street in the 800 block from a pole on the southwest corner of High & Spruce Streets to the Cancer Society Building on the northeast corner of High & Union Streets in the City of Bethlehem, Northampton County, Pennsylvania. The telephone wire was not of uniform height but was lower at the Cancer Building than at the service pole.

On January 23, 1970, the elevated stack of a passing tractor trailer caught the wire and ripped it loose from the Cancer Building. The unmoored end fell to the ground as the slackened wire lay draped across the other service wires.

At approximately 2:00 P.M. that same afternoon, Mr. Miller, who resided on the east side of the 800 block of High Street, attempted to remove the fallen line from the path of his parked automobile by coiling the wire in loops. Due to the obstruction, two vehicles had come to a stop in the middle of the roadway. However, a third vehicle, a taxicab operated by appellant Pacheco, veered around the other cars and did not halt until the wire was resting on the hood of the cab. Mr. Miller motioned for Pacheco to back up and called the instruction to him several times. The cab driver failed to comply but rather moved ...


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