Felo v. Kroger Grocery & Baking Co.

• Decision Date: 19 April 1943
• Docket Number: 36,35,41,38,37,40,39,34
• Citation: 31 A.2d 552,347 Pa. 142
• Parties: Felo et al. v. Kroger Grocery & Baking Company, Appellant, et al
• Court: Pennsylvania Supreme Court

31 A.2d 552

Felo et al. v. Kroger Grocery & Baking Company, Appellant, et al

347 Pa. 142

Nos. 34, 35, 36, 37, 38, 39, 40, 41

Supreme Court of Pennsylvania

April 19, 1943

March 24, 1943, Argued

Appeals, Nos. 34-41, March T., 1943, from judgments of C.P Allegheny Co., April T., 1941, Nos. 3477, 3478, 3479and3476, in cases of Barbara Jean Felo, a minor, by her guardian Andrew Felo, and Andrew Felo and Clara R. Felo, parents, in their own right, v. Kroger Grocery & Baking Co. and Richard F. Ehrler; Rose Marie Felo, etc. v. Same; Robert Felo, etc v. Same; and Clara R. Felo and Andrew Felo, her husband, v Same.Judgment for Barbara Jean Felo reduced and, as modified, affirmed; other judgments affirmed.

Actions of trespass for personal injuries.Before MARSHALL, J.

Verdicts, for wife plaintiff, $3500, reduced to $1500, and for husband plaintiff, $300; for minor plaintiff, $25,000, reduced to $17,500, and for parent plaintiffs, $544; for minor plainitff, $250., and for parent plaintiffs, $104; for minor plaintiff, $250., and for parent plaintiffs, $10; and judgments thereon.Defendant, Kroger Grocery & Baking Co., appealed.

The judgment for Barbara Jean Felo is reduced to $14,000 and, as modified, is affirmed; the other judgments are affirmed.

Daniel H. McConnell, for appellant(defendant, Kroger Grocery & Baking).

Louis D. Cooper, for appellee(defendant, Ehrler).

Ben Paul Brasley, of Brasley, Rubin, Balter & Cole, with him Herbert Jacobson, for appellees(plaintiffs).

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

OPINION

MR. JUSTICE DREW:

These actions in trespass to recover damages for personal injuries sustained by Clara R. Felo and her three minor children, alleged to have been caused by the negligence of defendants, Kroger Grocery & Baking Company and Richard F. Ehrler, were instituted by Andrew and Clara R. Felo in their own right and by the former as guardian of the minor children.The jury returned verdicts against the Kroger company but in favor of Ehrler in each case.Motions for a new trial were filed by the Kroger company and, after argument, were discharged by the learned court below on condition that remittiturs be filed as to two of the verdicts.Plaintiffs duly filed remittiturs and judgments were entered for them from which separate appeals were taken by the Kroger company which were argued together and will be disposed of in this opinion.

The jury, by its verdicts, found the facts to be as follows: On the night of September 21, 1940, at about eleven o'clock, a large trailer truck of the Kroger company was proceeding in a westerly direction on Route 22, a two lane highway, about fifteen miles west of Pittsburgh.Ehrler had been following this truck in his automobile for some time and, upon reaching a straightaway of some 600 to 700 feet, sounded his horn and started to pass.The operator of the truck, instead of permitting him to pass, increased his speed and Ehrler, seeing the lights of a vehicle approaching from the opposite direction as it rounded a curve in the road, started to fall back when the truck, suddenly coming over to the left towards him, struck the right front wheel of his automobile and caused him to lose control of it.Ehrler's automobile continued on for about seventy-five feet further and then crashed into the automobile that was approaching.That automobile was the one in which Mrs. Felo and her three young children were passengers, and it had been brought to a stop, or practically so, by its driver, Harry Holstein, at the time of this unfortunate accident.It was on the extreme right hand side of the road occupying but three feet of the cartway, the remainder being on the berm, when the crash came.

Barbara Jean Felo, one of the minor plaintiffs, a child of four years, was the most seriously injured, and her guardian claimed the sum of $15,000 as damages.She suffered a severe injury to the head with cerebral concussion and very extensive lacerations of the face, a laceration of the right arm and a greenstick fracture of the right radius and ulna.The disfigurement of her features seems to be of a permanent character, and she still suffers pains and nervousness as a result of the head injury.She was awarded $25,000 by the verdict of the jury, which sum the court below reduced to $17,500 on the condition that otherwise a new trial would be granted, which condition was accepted.Mrs. Felo was also seriously injured; she suffered lacerations of both ankles, a severe brush burn and contusion of the left leg, and minor contusions of the body and shock.Her leg condition required suturing and drainage, she had to have medical attention for a period of well over a year, and she still experienced pains at the time of the trial.The jury awarded her $3,500 which was reduced by the court below to $1,500.There is no complaint as to the amount of damages awarded the other plaintiffs.

The Kroger company contends that a new trial should have been granted on the ground, inter alia, that its codefendant Ehrler, was guilty of negligence as a matter of law.This position, even if sustained, does not affect the rights of plaintiffs, for, as we said in Trerotola v. Philadelphia,346 Pa. 222, 226-7: "Having secured a verdict against one of two alleged tort-feasors, the...