14 A.2d 170 | Pa. Super. Ct. | 1940
Argued March 5, 1940. This action in trespass was brought to recover damages for injuries sustained by plaintiff (a minor) when he was struck by an automobile driven by George Eugene Wesley, one of the defendants, and owned by Elsie Wesley, his mother, the other defendant. The jury rendered a verdict for plaintiff. Defendants' motion for judgment in their favor n.o.v. was denied by the court below, and they have appealed.
Appellee has the verdict, and the evidence must be viewed in the light most favorable to him. Korenkiewicz v. York MotorExpress Co., Inc.,
Near noon on April 25, 1936, a clear day, appellant driver was operating his mother's automobile south on Mill Street in West Nanticoke, Pa., approaching a horse-drawn wagon which was proceeding slowly north on the same street. Appellee, then six years of age, was walking across Mill Street, from east to west, behind the wagon. As he emerged from behind it and reached the middle of the street, he was struck by the front of the left front fender of the automobile operated by appellant driver. After the accident he was lying a little to the east of the midline of the street at a point 60 feet north of the nearest intersection. This point was 25 to 40 feet from the rear of the wagon, which was stopped when the driver heard the noise arising from the accident.
Mill Street is paved with concrete for its full width of 18 feet, and from the intersection previously mentioned there is an unobstructed view of 750 feet to the north. There are no sidewalks. Appellant driver told the parents of appellee that he saw the latter's legs through the open space between the bed of the wagon and the surface of the street when he was 50 feet away, *455 and at the trial appellant driver testified that he saw appellee when he was 30 feet away, but did not blow his horn. Appellant driver estimated his speed at 15 miles per hour. There was no direct evidence of higher speed, but there was evidence that appellee was picked up 10 feet to the rear of the automobile after the accident.
Appellant driver described his first view of appellee as follows: "I noticed the boy's hands, the child's hands, both above the wagon, . . . . . . all I could see was the boy's hands and him, little of the top of his head. . . . . . . Q. Did you see enough of him to know that it was a child? A. Yes, sir."
Whether appellee was walking across the street behind the wagon or hanging on the rear of it was for the jury to decide in view of the conflicting testimony. There was ample evidence that he was walking across the street at the time he was struck by the automobile, but since appellant driver was aware of his presence on the highway it would appear to be immaterial which he was doing.
In Moore et ux. v. Leininger,
In Derr et ux. v. Rich,
In the case at bar appellant driver admitted that he saw appellee 50 feet away, and knew he was a child. Consequently, in this respect, the case is no different in principle from those such as Moore et ux. v. Leininger, supra, and Johnson et al. v.Abbotts Alderney Dairies,
The situation here is that of a motorist observing a child crossing the street 50 feet in advance of his automobile, who, by his own admission, gave no warning of the approach of his vehicle, nor is there evidence that he attempted to stop or decrease its speed. The testimony was sufficient to carry the case to the jury, and warranted the verdict.
It has frequently been held that the character of proof to impute negligence where an accident occurs between street crossings is different from that necessary where the injury occurs at a public crossing (McAvoy v. Kromer et el.,
The test here is whether, after seeing appellee in the highway, appellant driver took proper steps to avoid the accident. Mooreet ux. v. Leininger, supra, p. 383. We cannot say as a matter of law that appellant driver was not guilty of negligence when, although cognizant of appellee's presence on the highway at a distance of 50 feet from his automobile, he continued at undiminished speed and without warning. The facts would indicate a lack of proper control or a lack of proper attention on the part of appellant driver under the circumstances. Assuming that the jury accepted appellant driver's testimony that his speed was 15 miles per hour, which they were not required to do, that in itself would not excuse him. It was his duty to stop if necessary to avoid injury, and it was for the jury to say, under the circumstances, whether he could have done so. When a child is on the street, or in the act of crossing, admittedly visible, the driver's obvious duty on approaching the spot is to bring his car under such control as the circumstances demand, so that, responsive to the child's capricious acts, he can stop to avoid injury. Silberstein et al. v. Showell, Fryer Co. (No. 1), supra, p. 306; Johnson et al. v. Abbotts Alderney Dairies, supra, p. 549.
Judgment is affirmed.