Kirby v. Carlisle

• Decision Date: 21 July 1955
• Citation: 178 Pa.Super. 389,116 A.2d 220
• Parties: Mae KIRBY, a minor, by her parents and natural guardians, John Kirby, her father and Mary Kirby, her mother, Appellants (No. 85) v. Joseph J. CARLISLE and George T. Gianoutsos. and John Kirby and Mary Kirby, in their own right, Appellants (No. 86),
• Court: Pennsylvania Superior Court

116 A.2d 220

178 Pa.Super. 389

Mae KIRBY, a minor, by her parents and natural guardians, John Kirby, her father and Mary Kirby, her mother, Appellants (No. 85) and John Kirby and Mary Kirby, in their own right, Appellants (No. 86), v. Joseph J. CARLISLE and George T. Gianoutsos.

Superior Court of Pennsylvania.

July 21, 1955

Action by minor pedestrian by her parents and natural guardians and by parents in their own right against motorist and another for injuries received by pedestrian when struck by automobile while alighting from streetcar. The Court of Common Pleas allegheny County, No. 1608, April Term, 1951, William H McNaugher, P.J., entered judgment for defendant and, along with three other judges, denied plaintiff's motion for new trial, and plaintiffs appealed. The Superior Court, Nos 85 and 86, April Term, 1954, Woodside, J., held that question whether evidence was sufficient to require award of damages to plaintiff was for jury.

Judgment affirmed.

Francis A. Muracca, Pittsburgh, for appellants.

Kim Darragh, George Y. Meyer, Pittsburgh, for appellees.

Before RHODES, P. J., and HIRT, ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

WOODSIDE, Judge.

The question here is whether the jury was justified in finding that the minorplaintiff suffered no injuries for which damages should be allowed when she was struck by an automobile being negligently operated by the defendant.

The verdict read ‘ guilty of negligence but no damages allowed to the plaintiff for injuries or loss of services because there were no injuries sustained by the minor plaintiff.’ President Judge McNaugher of the Court of Common Pleas of Allegheny County, before whom the case was tried, molded this to be a verdict for the defendant and entered judgment accordingly.

The plaintiffs filed a motion for a new trial on the grounds that the verdict was against the evidence, the weight of the evidence, the law, the charge of the court, and that the trial judge erred in withdrawing from the jury's consideration the question of permanent injuries alleged to have been suffered by the minor plaintiff. Argument on this motion was heard by four judges and the motion denied. This appeal followed.

An automobile was being operated by the defendant along side a street car for some distance in the City of Pittsburgh. When the street car stopped at Shady Avenue and Forbes Street the minor plaintiff, then thirteen years of age, alighted from the front door. The defendant was unable to stop his automobile, but turned it away from the girl. As he did either the left front bumper or the side of the automobile grazed her, but did not knock her down. The defendant stopped his car within a few feet after the contact.

Counsel for defendant makes no claim that his client was free from negligence or that the child was guilty of contributory negligence. The only question is whether the child sustained an injury for which the plaintiffs were entitled to damages.

To constitute a tort there must be an injury. Mike v. Lean, 1936, 322 Pa. 353, 356, 185 A. 775. See also Hoodmacher v. Lehigh Valley R. Co., 1907, 218 Pa. 21, 23, 66 A. 975; Sullivan v. Old Colony Street Railway Co., 1908, 200 Mass. 303, 86 N.E. 511.

A mere collision, if not sufficiently violent to cause any damage or injury, creates no legal liability, because an action for negligence lies only if injury or damage is caused by the negligence. Jeloszewski v. Sloan, 1953, 375 Pa. 360, 364, 100 A.2d 480.

The burden is upon the plaintiffs to make out their case by a fair preponderance of the credible evidence. They must not only prove that the defendant was negligent but they must prove that the negligence caused an injury to the minor plaintiff for which they are entitled to recover damages. Proof of one without the other affords no right to recovery.

Even if the minor plaintiff was injured, it is possible that the injury could be so slight that the jury would be justified in refusing to award any damages. Nominal damages to vindicate a technical right, cannot be recovered in a negligence action where no actual loss has occurred. See Prosser on Torts, pp. 177-178 and cases there cited.

In Millenson v. City Stores, 382 Pa. 39, 114 A.2d 80, 82, handed down by the Supreme Court May 23, 1955, that court reversed the lower court which had granted a new trial because the jury had refused to award the plaintiff any damages in a case where an assault and battery was not denied. Justice Bell speaking for the court said: ‘ If plaintiff's evidence was believed, defendant was technically guilty of assault and battery. However, even if it was believed, and the jury did not have to believe it, the ‘ patting’ of his pockets was such a trifling battery that the jury realistically gave a verdict to defendant instead of awarding plaintiff 6¢ damages. That did not justify the grant of a new trial.'

In reviewing the evidence on damages we need refer only to such of the...