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JOHN A. PALMER v. ARTHUR WILBUR BREST (04/28/78)

decided: April 28, 1978.

JOHN A. PALMER, A MINOR, BY HIS PARENT AND NATURAL GUARDIAN, CHARLES A. PALMER, AND CHARLES A. PALMER, IN HIS OWN RIGHT, APPELLANTS,
v.
ARTHUR WILBUR BREST, JR.



No. 693 April Term, 1976, Appeal from the Order of Judgment of the Court of Common Pleas, Civil Division, of Mercer County, Pennsylvania, at No. 84 March Term, 1973.

COUNSEL

Frances S. Palmer, Sharon, for appellants.

George Hardy Rowley, Greenville, with him Voorhies, Dilley, Keck, Rowley & Wallace, Greenville, for appellee.

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

Author: Cercone

[ 254 Pa. Super. Page 534]

The instant case was initiated as a complaint in trespass against Arthur Wilbur Brest, Jr., appellee, for personal injuries sustained by John Palmer, a minor in an auto accident. Brest was driving and John Palmer, appellant, was riding with him as a guest passenger. Since John Palmer is a minor, his father, Mr. Charles Palmer, sued in his son's behalf for loss of earning capacity, future medical expenses, pain, suffering and inconvenience. Mr. Palmer also sued in his own right for the cost of medical expenses incurred in caring for his son.

The facts surrounding the case are as follows. On the evening of August 7, 1971, John Palmer and Arthur Brest

[ 254 Pa. Super. Page 535]

    were among those persons attending a bazaar at St. Michael's Church on Highland Boulevard in Sharon, Pennsylvania. They were residents of West Middlesex. Approximately at 10:00 P. M. that evening, word traveled through the bazaar that the police were coming to break up a fracas between young people from Farrell, Pennsylvania and West Middlesex, Pennsylvania. In response to this message, a number of the youths, including John Palmer and Arthur Brest, quickly decided to leave the bazaar.

Witnesses for appellant testified that "everybody was running" and that the teenagers were jumping into cars and taking off to get back to West Middlesex "as quick [sic] as they could," with Palmer riding in Brest's car.

On the way back to West Middlesex, Brest testified that he unintentionally was traveling 50 mph in a 35 mph zone. He was negotiating a curve when the right wheels of his auto went onto the berm. He attempted to get back onto the road surface and was braking his car to slow it down when his foot slipped off the brake pedal and onto the accelerator. The automobile surged forward, crossed the road, and ran into a mailbox and a fire hydrant on the opposite side of the street, stopping in a culvert. Both Brest and Palmer testified they were not aware of the 35 mph speed limit; Palmer further adding he had seen no signs concerning speed limit.

As a result of the accident, the door on the passenger's side of the car was caved-in almost to the back of the car and the windshield on that side was broken. Palmer was thrown from the car and was found lying unconscious about 25 feet from the vehicle. Brest was not seriously injured. Palmer did not regain full consciousness for three days following the accident, suffering from a severe cerebral contusion, a deep laceration to the forehead exposing the skull, lacerations of the left upper eye and right forearm. Furthermore, ...


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