Blake v. Marinelli

• Decision Date: 30 June 1947
• Docket Number: 3041
• Parties: Blake et vir v. Marinelli, Appellant
• Court: Pennsylvania Supreme Court

53 A.2d 550

357 Pa. 314

Blake et vir v. Marinelli, Appellant

No. 3041

Supreme Court of Pennsylvania

June 30, 1947

Argued May 27, 1947

Appeals, Nos. 102 and 110, March T., 1947, from judgment of C.P., Erie Co., Sept., T., 1946, No. 307, in case of Abbie V Blake et vir v. Michael Marinelli, trading as Lake Shore Distributing Company. Judgment affirmed.

Trespass for personal injuries. Before LAUB, J.

Verdict for defendant. Plaintiffs' motion for new trial granted before EVANS, P.J., and LAUB, J., opinion per curiam. Defendant appealed.

Judgment affirmed.

Douglass D. Storey, with him Frank B. Quinn, English, Quinn, Leemhuis & Plate and Storey & Bailey, for appellant.

A. Grant Walker, with him Henry A. MacDonald and Gifford, Graham, MacDonald & Illig, for appellees.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.

OPINION

PER CURIAM

In this case the appealed from "order" granting a new trial is affirmed on the following excerpts from the opinion of the court below.

"On May 18, 1945, the wife plaintiff was seriously and permanently injured by being struck by defendant's truck on State Street in the City of Erie. State Street is an extremely busy two-way traffic artery and the accident happened between intersections.

"The testimony disclosed that the wife plaintiff left the premises of the Erie Dry Goods Company, known as the Boston Store, sometime after 2:00 p.m. and walked eastwardly to the west curb of State Street which is a north-south street. Immediately before the Boston Store is a well-defined 'No Parking' zone which is marked by white lines running out into the cartway and by vertical 'No Parking' signs which are stationed at the north and the south limits of the zone at the curb line. The wife plaintiff walked eastwardly to the north 'No Parking' sign and prepared to cross State Street between the intersections of Seventh and Eighth Streets, Seventh Street being an east-west street to the north of her, and Eighth Street being an east-west street to the south.

"As she prepared to cross the street, defendant's truck passed her, going in a southwardly direction on the west side of State Street. The wife plaintiff followed the progress of the truck out of the corner of her eye and then, seeing no indication that the truck was about to stop or change its motion, stepped into the cartway, concentrating her attention to the north from which the natural flow of traffic would be expected. She had proceeded only four or five steps when she was struck by defendant's truck which was then backing up. As a result of being struck, the wife plaintiff suffered a fracture in her left hip just below the head of the femur. She is now suffering from lost motion in the left leg and is unable to bear her whole weight on it. The leg itself has been shortened about one inch as a result of her injuries.

"The jury returned a verdict in which... was molded into a finding for the defendant...

"Upon the trial of the case, Arthur Scholton, a witness for the plaintiff, testified upon cross examination that he had seen the defendant's truck pull up between the 'No Parking' signs in front of the Boston Store and then back up at the rate of about one mile an hour. He further testified that while the truck was in the process of backing up he saw a woman (whom he did not identify as the wife plaintiff but the inference was plain that it was she) step off the curb. The testimony disclosed that the 'No Parking' space was only twenty-one feet wide, and the effect of the testimony of this witness was to cement the inference raised by the testimony of the wife plaintiff that she must have heedlessly stepped off the curb without looking, and walked into the path of the backing truck. "After the trial the witness Scholton signed an affidavit in which he admitted having perjured himself. The plaintiffs promptly, and within term...