Olsavsky v. Bamford

• Citation: 363 Pa. 47,68 A.2d 594
• Decision Date: 14 October 1949
• Docket Number: 1097
• Parties: Olsavsky et vir, Appellants, v. Bamford et al
• Court: Pennsylvania Supreme Court

68 A.2d 594

363 Pa. 47

Olsavsky et vir, Appellants, v. Bamford et al

No. 1097

Supreme Court of Pennsylvania

October 14, 1949

Argued October 4, 1949

Appeals, Nos. 1 and 2, March T., 1950, from order of Court of Common Pleas of Allegheny County, Oct. T., 1947, No. 540, in case of Anna A. Olsavsky et vir v. August Bamford et al trading as Bamford Brothers. Order affirmed.

Trespass for personal injuries. Before KENNEDY, J.

Verdict for plaintiff wife in sum of $8,000 and in favor of plaintiff husband in sum of $5,000. Defendants' motion for new trial granted. Plaintiffs appealeld.

The order of the court is affirmed.

George S. Goldstein , for appellants.

Ernest C. Reif , with him Dickie, Robinson & McCamey for appellees.

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

OPINION

PER CURIAM

Plaintiffs brought an action in trespass against the defendants, public carriers, to recover damages for the injuries sustained by Anna A. Olsavsky on July 14, 1947, when as a passenger on a bus owned by the defndants the heel of the shoe on her right foot caught in a hole in the steel plate on the floor of the bus between the fare box and the door and catapulted her from the bus to the street. She sustained injuries to her knees, shoulders, back, left thumb and a tearing of the abdomen on the right side.

After trial the jury returned a verdict in the sum of $8,000 for the wife and the sum of $5,000 for the husband. Counsel for the defendants moved for judgment n.o.v. and a new trial and assigned eight reasons for a new trial, among which was: "8. Counsel for the plaintiffs, in this closing argument, so prejudiced the cause of the defendants with the jury by improper argument beyond the scope of the evidence and the inferences to be drawn therefrom that the case should have been continued in harmony with the plea and motion of the defendants."

At one of the recesses during the trial the judge asked the defendants' counsel, in the presence of plaintiffs' counsel, if he, defendants' counsel, proposed to move for a compulsory non-suit. Defendants' counsel indicated that he did not intend to do so. This was in the judge's chambers. In a final summation plaintiffs' counsel commented on the fact that such an incident took place. These remarks were allegedly to the effect, "The Judge said 'You are not going to file a motion for compulsory nonsuit in view of this evidence.'" Defendants' counsel now argue that plaintiffs' counsel in making the statement gave the jury "the Trial Judge's supposed evaluation of the evidence." Defendants' counsel moved the Court to withdraw a juror on account of the alleged prejudicial remarks. This motion was refused. In his opinion ordering a new trial the judge said: "How prejudicial this unfortuitous but unintentional remark of counsel for plaintiff may have...