6 A.2d 64 | Pa. | 1939
This suit was instituted to recover damages for injuries sustained by the minor plaintiff as a result of an accident in which an automobile operated by the defendant was involved. The accident occurred on Ogontz Avenue south of its intersection with Walnut Lane, in the City of Philadelphia. Ogontz Avenue is a two-way street, sixty feet wide from curb to curb, and extends north and south, with a double set of trolley tracks thereon.
On the afternoon of December 16, 1936, a man dressed as Santa Claus was distributing candy to children on the east sidewalk of Ogontz Avenue, at a point approximately two hundred and eighty feet south of Walnut Lane. Among the children was the minor plaintiff, Donald Hulmes.* It appears that just prior to the accident he and another boy left the group of children and walked to the east curb of Ogontz Avenue for the purpose of crossing to the opposite side to see an electrical display in a store window. According to the testimony, the minor plaintiff left his companion standing on the curb and ran into the cartway where he was struck by defendant's automobile, which was proceeding in a southerly direction on the Avenue. He was picked up *119 after the accident about two feet outside of the west rail of the trolley track.
No testimony was presented on behalf of defendant at the trial in the court below. The jury returned a verdict for the defendant, and this appeal is from the refusal of the court below to award plaintiffs a new trial.
It is clear from the record that plaintiffs failed to establish the manner in which the accident happened. There is no testimony indicating the length of time that elapsed from the child's leaving the east curb of the sidewalk and the moment when he was struck by the automobile, nor is there any evidence to show how far he had progressed across the street when he was struck. The location of the defendant's automobile at the time when the child started to cross the street is not fixed. In consequence there are no facts upon which the conclusion can be based that the minor plaintiff was in the cartway for such a length of time prior to the accident that the defendant, in the exercise of due care, should have observed his presence, and that her failure to do so was negligence.
The burden of proving how the minor plaintiff was injured was upon the plaintiffs: Niziolek v. Wilkes-Barre Ry. Corp.,
In respect to a similar situation, it was appropriately said in Fisher v. Amsterdam,
The only competent evidence concerning the speed of defendant's car is to the effect that she was traveling from fifteen to twenty miles an hour. The accident happened between crossings, and the single eyewitness to its occurrence was the minor plaintiff's young companion, who testified that while they were standing together on the curb the plaintiff let go of his hand and ran into the street where he was struck by the automobile. As we said in Purdy v. Hazeltine,
From our review of the record we have reached the conclusion that there is no evidence of negligence which would justify a reversal of the order of the court refusing plaintiffs a new trial. In view thereof it is unnecessary to discuss the remaining assignments of error complaining of certain portions of the charge of the trial judge, and of incidents that occurred at the trial which plaintiffs contend were prejudicial to their case.
The judgment of the court below is affirmed.