No. 599 Pittsburgh, 1981, APPEAL FROM THE ORDER OF APRIL 27, 1981 IN THE COURT OF COMMON PLEAS OF SOMERSET COUNTY, CIVIL ACTION, LAW NO. 150 CIVIL 1976
James B. Yelovich, Somerset, for appellant.
Eugene E. Fike, II, Somerset, for appellees.
Rowley, Cirillo*fn* and Van der Voort, JJ.
[ 309 Pa. Super. Page 308]
This is an appeal from an Order dated April 27, 1981, granting a new trial. This arose as a result of an automobile accident, which occurred on September 5, 1974 on Legislative Route 601, Boswell Borough, Somerset County, Pennsylvania. The defendant-appellant, Jeffrey L. Gibson, was the operator of the pick-up truck owned by defendant, T.H. Nelson, which struck four-year-old Michael Lamb, who was crossing the roadway. The resulting injuries to Michael were extensive and the incurred medical expenses substantial. The actions in trespass were begun by Michael's parents on their behalf and his against Jeffrey L. Gibson and T.H. Nelson. Subsequently, upon stipulation of the parties, Summary Judgment was granted in favor of defendant Nelson.
In 1977, the case was tried before a jury in the Court of Common Pleas of Somerset County, Judge Norman A.
[ 309 Pa. Super. Page 309]
Shaulis presiding. The jury returned a verdict in favor of the defendant-appellant, Jeffrey L. Gibson. The appellees moved for judgment n.o.v. or a new trial. The trial judge, with the concurrence of President Judge Coffroth, filed an Opinion and entered an Order denying the motion for judgment n.o.v., but granting the motion for a new trial. The defendant-appellant, Gibson, appealed from the Order granting a new trial. Our Court, in an Opinion filed January 4, 1980, affirmed the lower court's Order granting a new trial. Lamb v. Gibson, 274 Pa. Super. 7, 417 A.2d 1224 (1980).
For a second time, the case was tried before a jury in the Court of Common Pleas of Somerset County on September 9 and 10, 1980 before Judge Shaulis. The jury again returned a verdict in favor of appellant. The appellees again moved for judgment n.o.v. or a new trial. For a second time in this case, the learned trial judge, with President Judge Coffroth, concurring, filed an Opinion denying judgment n.o.v., but granted the motion for a new trial, "[b]ecause the evidence presented at the second trial, even more strongly than that at the first trial, indicated that the defendant breached his duty of care toward plaintiff . . ." We affirm.
There is no dispute between the parties as to the circumstances of the accident. It took place on September 5, 1974 at 3:30 p.m. under normal visibility. The appellant was traveling north on Route 601. After coming out of a curve, the appellant saw two small boys some 550 feet ahead of him, running from the right-hand or easterly berm of the road to its left-hand or westerly berm. Appellant testified that he continued to travel between 35 and 40 m.p.h., after seeing the boys for the first time and until striking Michael. Neither watching them nor reducing his speed, he continued driving toward a crest in the road. When he reached the crest, appellant saw the boys between the two lanes of traffic, running from the left-hand berm about 35 feet ahead of him. Appellant applied his brakes, but nevertheless struck one of the boys, the appellee Michael Lamb.
[ 309 Pa. Super. Page 310]
The testimony indicates that Michael has suffered permanent brain damage, with consequent physical and intellectual handicaps. His treatment has cost nearly $60,000 up to the time of trial. Eight persons witnessed the accident, including ...