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LAWRENCE STOWE v. JOHN H. BOOKER AND CITY PHILADELPHIA. APPEAL CITY PHILADELPHIA (01/30/81)

filed: January 30, 1981.

LAWRENCE STOWE
v.
JOHN H. BOOKER AND CITY OF PHILADELPHIA. APPEAL OF CITY OF PHILADELPHIA



No. 2697 October Term, 1978, Appeal from an Order of the Court of Common Pleas of Philadelphia County, Civil Division-Trespass, No. 1796 July Term, 1973.

COUNSEL

Agostino Cammisa, Assistant City Solicitor, Philadelphia, for appellant.

Louis Fine, Philadelphia, for Stowe, appellee.

A. Richard Bailey, Philadelphia, for Booker, appellee.

Hester, Montgomery and Cirillo,*fn* JJ.

Author: Hester

[ 284 Pa. Super. Page 55]

Presently before the Court is an appeal from the lower court's order dismissing appellant's exceptions to the trial judge's findings of fact and conclusions of law.

This was an action in trespass to recover damages for personal injuries sustained as a result of an accident which occurred on or about the afternoon of November 17, 1972. Appellee, a pedestrian, was struck by defendant Booker's*fn1 car when he stepped into the intersection of 22nd and Montrose Streets from behind appellant's illegally parked truck.

The complaint in trespass was filed against appellant July 12, 1973. The case was tried without a jury in August of 1977 on the issue of liability. At the close of appellee's testimony, appellant moved for a compulsory non-suit and/or dismissal. This motion was denied. By order dated August 26, 1977, the Court found "in favor of plaintiff against defendants, jointly and individually" and ordered that a hearing be set to determine damages (R. 215a). Subsequently, by order dated March 16, 1978, the Court found the defendants "jointly and mutually liable in the amount of two hundred and fifty thousand ($250,000) dollars." (R. 215a).

[ 284 Pa. Super. Page 56]

The City of Philadelphia filed a motion for judgment n. o. v. or in the alternative for a new trial and filed timely exceptions to the trial court's findings of fact and conclusions of law.*fn2 This appeal followed the dismissal of those exceptions.

Appellant contends that there was insufficient evidence upon which to base a finding of negligence or, in the alternative, that appellee was contributorily negligent as a matter of law and therefore the court erred in failing to grant appellant's motions for a compulsory non-suit. We agree that appellee was contributorily negligent as a matter of law; that the lower court erred in failing to grant appellant's motion for a compulsory non-suit, and therefore reverse the lower court's order and direct that a judgment be granted in favor of appellant and against appellee.

The facts surrounding the accident, established by appellee and defendant Booker, testifying on ...


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