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BERNICE SELBY v. EDWARD I. BROWN (10/06/77)

decided: October 6, 1977.

BERNICE SELBY, ADMINISTRATRIX OF THE ESTATE OF ANTHONY FRANK SELBY, DECEASED
v.
EDWARD I. BROWN, APPELLANT



No. 985 October Term, 1976, Appeal from the Judgment of the Court of Common Pleas, Trial Division, Law, of Philadelphia County, at No. 5588 March Term, 1967.

COUNSEL

Charles Jay Bogdanoff, Philadelphia, with him William L. Kinsley, Philadelphia, for appellant.

George J. O'Neill, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Cercone, JJ., concur in the result.

Author: Watkins

[ 250 Pa. Super. Page 136]

This is an appeal from the judgment of the Court of Common Pleas of Philadelphia County after the entry of judgment on a verdict in a wrongful death and survival action by the personal representative of the decedent. A verdict was returned in the sum of $8,200 in the wrongful death action and $35,000 in the survival action.

The cause of action arose out of an accident occurring at 11:55 a. m. on August 27, 1966 between an automobile driven by the defendant, Edward I. Brown, and a bicycle operated by the now deceased minor plaintiff, Anthony Frank Selby. The defendant was proceeding in an easterly direction on Ellsworth Street, which is a through street, and the plaintiff's decedent, 14 years of age, was proceeding in a northerly direction on 18th Street which was controlled by a stop sign. The boy was turning into Ellsworth Street and as he proceeded into the intersection, contact occurred between the automobile and the bicycle. The minor plaintiff died of his injuries within minutes after the accident.

A wrongful death and survival action was brought by the personal representative of the decedent and the case was tried before Judge and jury on March 6, 1972.

The trial presents a series of circumstances that are so highly prejudicial and inflammatory as to make a fair trial impossible. It is regrettable that a case involving an accident that occurred in 1966 and which was tried in 1972 must be further delayed because of serious trial errors.

At the beginning of the case during the empaneling of the jury, the plaintiff's attorney raised the issue of insurance and a sum of "hundreds of thousands of dollars" for verdict consideration. Timely motion for the withdrawal of a juror was made and refused by the trial Judge.

At the opening of the trial, counsel for the defendant moved to have the case bifurcated as to the issues of liability and damage. Considering the liability issues in light of the fact that the plaintiff did have a stop sign, and the defendant was on a through street, it would have been a sound

[ 250 Pa. Super. Page 137]

    exercise of discretion by the trial court to have granted the motion so that the emotional aspects of the case might be mitigated. The defendant's liability carrier offered payment of the full coverage of the policy if liability was decided in favor of the plaintiff. However, ...


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