25 A.2d 718 | Pa. | 1942
This action in trespass was instituted by Clara L. Dugan, a minor, by her father and next friend, Edward R. Dugan, and by Edward R. Dugan, in his own right, appellees, to recover for injuries sustained by the child as the result of being struck by a truck owned by the appellant, McGara's, Inc., while she was crossing from the south to the north side of "Larimer Road", a two-lane highway, twenty feet in width, in Huntington Township, Westmoreland County. At the time of her injuries, about 7:30 p.m. on June 16, 1939, the child, who was then only five years of age, had come out of a candy store on the south side of "Larimer Road", in the company of another little girl, and had proceeded two-thirds of the distance across the highway when appellant's truck, being operated by one Elliott W. Martin in an easterly direction, swerved to the left or wrong side of the highway, striking her and causing the serious injuries for which suit was brought. At the conclusion of appellees' testimony, *462 appellant moved for a compulsory nonsuit on the ground that the driver of the truck was not its servant engaged upon its business, when the accident occurred, and on the ground that negligence on the part of the driver had not been established. This motion was refused by the court, as was also appellant's subsequent request for binding instructions, and the case was submitted to the jury, resulting in verdicts for appellees, totalling $3,954. Appellant thereupon filed a motion for a new trial, which it later abandoned, and a motion for judgment non obstante veredicto. After argument on the motion for judgment, the court en banc entered orders overruling both motions and directed that judgments be entered in accordance with the verdicts in appellees' favor. These appeals were then taken.
Called as a witness for appellees, Martin, the driver of the truck, which admittedly belonged to appellant, testified that at the time of the accident he was employed by the Great Atlantic and Pacific Tea Company, in removing trash from stores which it had vacated, and that he was using appellant's truck for this purpose without its knowledge or consent, having taken the truck from appellant's parking lot, without leave, after business hours. Similar testimony was offered by one Grande, Martin's helper, who was riding with him in the truck at the time. Conceding that where, as here, the vehicle involved is a commercial vehicle, as distinguished from a non-commercial one, and its ownership is admitted by defendant, a presumption ordinarily arises that the driver was defendant's servant and that it was being operated at the time of the accident for the purposes of defendant's business (Marach v. Kooistra,
If the evidence, when viewed in the light most favorable to appellees, indicated that the child was not on the highway such a length of time before the accident occurred that the driver of its truck, in the exercise of due care, should have seen her and avoided the accident, as appellant asserts, then the rule would apply that drivers are not required to anticipate that a child will suddenly run from a place of safety into the path of oncoming motor vehicles, and there could be no recovery:Stahl v. Sollenberger,
Since the reasons now urged in support of the granting of a new trial, apart from those which are purely formal, were not among the reasons assigned in the court below, they are not properly before us for consideration, and we do not discuss them: Gasperoni v. Datt,
Judgments affirmed.