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ROSE MCCLOY v. PENN FRUIT COMPANY (11/22/76)

decided: November 22, 1976.

ROSE MCCLOY, ADMINISTRATRIX OF THE ESTATE OF SAMUEL MCCLOY, DECEASED, APPELLANT,
v.
PENN FRUIT COMPANY



No. 376 October Term, 1976 Appeal from the Judgment entered October 31, 1975, of the Court of Common Pleas of Philadelphia County, No. 7, Trial Division, Law, at No. 4150 March Term, 1963.

COUNSEL

Andrew F. Napoli, Philadelphia, for appellant.

Dean F. Murtagh, Philadelphia, with him James M. Marsh, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 245 Pa. Super. Page 252]

The litigation from which this appeal arises began with a multi-vehicle collision occurring on December 20, 1962, in the city of Philadelphia. We must reverse the judgment of the lower court and remand for a new trial.

Testimony at trial established that plaintiff-appellant's decedent was in a line of cars stopped for a red traffic signal at the corner of 28th Street and Passyunk Avenue. Defendant-appellee's employee, driving appellee's truck, experienced brake trouble and collided with the rear of

[ 245 Pa. Super. Page 253]

    the last automobile in the line. The force of the collision hurled the automobile into the rear of the automobile in front of it, which, in turn, was hurled into the rear of the decedent's automobile.

On December 27, 1962, the decedent, suffering from various maladies including angina and acute tachycardia, was admitted to a Philadelphia hospital. On January 11, 1963, he was discharged, but treatment for anxiety and nervousness continued almost to his death of a myocardial infarction, on May 31, 1963.

Appellant based her cause of action on the theory that the automobile accident had aggravated a latent heart condition in the decedent, thereby causing his death. To that end, appellant introduced hospital records to prove that the decedent had been treated for a myocardial infarction two and one-half years prior to the accident. The records and testimony also revealed that the decedent had recovered from the infarction as of December 14, 1960, and that periodic examinations, beginning with one on January 17, 1961, and ending with the last on December 11, 1962, revealed no recurrence of the symptoms.

Appellant's expert testified that the accident aggravated the decedent's heart condition, causing his death. Appellee's expert testified that whether the automobile accident caused the death would depend on the evidence accepted as true. On February 9, 1973, a jury rendered a verdict in favor of appellee. The appellant's motion for a new trial was dismissed and this appeal followed.

Appellant's sole allegation is that the lower court erred in instructing the jury that foreseeability of injuries is a test for determining proximate cause. In reviewing a lower court's charge to the jury, we must view the charge in its entirety. Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 ...


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