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MARGARET ROBINSON v. CITY PHILADELPHIA AND LAWRENCE STRUNK AND GUS DRAMIS T/A DRAMIS AUTO PARTS (05/18/84)

filed: May 18, 1984.

MARGARET ROBINSON, ADMINISTRATRIX OF THE ESTATE OF JAMES MILLER, DECEASED, APPELLANT,
v.
CITY OF PHILADELPHIA AND LAWRENCE STRUNK AND GUS DRAMIS T/A DRAMIS AUTO PARTS



No. 981 Philadelphia, 1982, Appeal from the Judgment entered March 19, 1982, Court of Common Pleas, Philadelphia County, Civil Division at No. 2443 March Term, 1973.

COUNSEL

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

Sarah Makin, Philadelphia, for City of Philadelphia, appellee.

Morton J. Sablosky, Philadelphia, for Strunk, appellee.

Spaeth, President Judge, and Cirillo and Johnson, JJ.

Author: Johnson

[ 329 Pa. Super. Page 143]

This is an appeal from the judgment entered on March 19, 1982 denying the motion for a new trial by appellant Margaret Robinson, administratrix of the estate of James Miller, as to the appellee, City of Philadelphia. We affirm.

This appeal concerns a collision between the decedent Miller's motorcycle and a truck driven by Lawrence Strunk, the City's co-defendant in the trial court proceedings, which resulted in Miller's death. The accident occurred on October 4, 1972 at the intersection of Umbria and LeMonte Streets in Philadelphia. Strunk was driving south on Umbria Street and was in the process of turning left onto LeMonte Street when Miller's motorcycle, proceeding north on Umbria Street, collided with the left front fender of Strunk's tow truck. There were no eyewitnesses to the accident; and Strunk testified that he did not see Miller at any time prior to their vehicles colliding.

[ 329 Pa. Super. Page 144]

The complaint alleged acts of negligence on the part of both Strunk and the City of Philadelphia. The plaintiff-appellant claimed Strunk's negligent operation of his truck was a substantial factor in causing the accident. The theory for recovery against the City was that it was negligent in allowing a bump, which testimony indicated protruded 2 1/2 to 3 inches above the road surface, to exist. At trial, the plaintiff-appellant's expert testified that the motorcycle's contact with the truck was merely a "glancing blow" which caused the motorcycle to go slightly out of control. The motorcycle then crossed the bump, and, as a consequence, Miller lost control of it and crashed. Thus, the bump was presented as being a substantial factor in causing Miller's death. The City presented rebutting evidence that the bump could not and did not contribute towards causing the accident. Both the City and Strunk argued that Miller's operation of his motorcycle was negligent and caused the accident.

The jury answered special interrogatories submitted by the court and found: (a) that the City of Philadelphia was not negligent, (b) that Strunk was negligent and that his negligence was a substantial factor in causing Miller's death, and (c) that Miller was contributorily negligent and that his contributory negligence, also, was a substantial factor in causing his own death. The plaintiff-appellant filed motions for a new trial against both co-defendants. The trial court granted the motion for a new trial as to Strunk*fn1 and denied the new trial motion as to the City of Philadelphia.

The scope of our review of an order granting or denying a new trial is well-defined. The test on appeal is whether the lower court committed a clear abuse of discretion or error of law which controlled the outcome of the case. If, upon reviewing the evidence, we ...


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