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JOSEPH LEOPOLD v. DOROTHY E. DAVIES (02/18/77)

decided: February 18, 1977.

JOSEPH LEOPOLD, A MINOR, BY JOHN L. LEOPOLD AND VIRGINIA M. LEOPOLD, HIS PARENTS AND NATURAL GUARDIANS AND ALSO IN THEIR OWN RIGHT, APPELLANTS,
v.
DOROTHY E. DAVIES



Appeal from the Judgment dated June 3, 1976, of the Court of Common Pleas, Civil Action-Law, of Erie County, at No. 2534-A of 1973. No. 893 April Term, 1976.

COUNSEL

Mario P. Restifo, Erie, for appellants.

T. Warren Jones, with him MacDonald, Illig, Jones & Britton, Erie, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion.

Author: Jacobs

[ 246 Pa. Super. Page 177]

This is an appeal from the denial of post-trial motions following a jury verdict in favor of defendant in a trespass action brought by appellant. We reverse.

On December 21, 1971, appellant Joseph Leopold, seven and one-half years old at the time, sustained injuries when he was struck by an automobile operated by appellee.

[ 246 Pa. Super. Page 178]

The accident took place while appellant was attempting to cross the street at the intersection of Sixth and West Chestnut Streets in Erie, Pennsylvania. The intersection was controlled by a traffic light, and there was conflicting testimony at trial concerning whether or not appellant was crossing against the light or whether the light was in his favor. The case went to the jury, and a verdict for defendant-appellee was returned.

In this appeal, appellant seeks a new trial because the following points for charge were read to the jury at the request of appellee:

"Point one: Based upon the unrebutted testimony you can find that Joseph Leopold appreciated the danger of crossing the street against a red light. Affirmed.

"Two: If you find that Joseph Leopold ran into the street against a red light, your verdict must be for the defendant. Affirmed." Printed Record at 12.

We need not consider the propriety of point for charge number one, since appellant did not raise this in his post-trial motions and thus failed to preserve the matter for appeal. Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963). Appellant's post-trial motions did raise the reading of point for charge number two as grounds for a new trial. Appellee nonetheless argues that this issue was not properly preserved for failure to specifically object to the ...


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