273 Pa. 34 | Pa. | 1922
Lead Opinion
Opinion by
This is an action of trespass for personal injuries to Clarence Idell, a minor of seventeen. The accident happened on the evening of January 23, 1920, at about 10 o’clock, while young Idell, in company with eight others, all minors, was sled riding on a roadway in Germantown known as Lincoln Drive. Their sled collided with defendant’s automobile. Verdicts for the minor and father were recovered in the court below, but, as appellant took but one appeal, instead of two, which the law requires, he was compelled to elect which judgment he would contest; by paper filed, he abandoned his objection to the father’s judgment, and assigned as error to that of the minor the refusal of the court to give binding instructions in favor of defendant.
Lincoln Drive, in the suburban section, is an eighty-foot wide street, fifty feet from curb to curb, with fifteen-foot sidewalks. The houses are built back twenty-five feet from the house-line, and, at Carpenter Street,
The sled continued past Carpenter Street, and was between the latter and West View Street, going about as fast as a man could run, on the proper side of the road, when defendant, without any notice or warning, within the space of thirty feet, suddenly turned his car from the right to the left hand side of the road and crashed into the sled, injuring this minor and others.
Defendant, returning from a professional call, endeavored to excuse his action by showing it was a misty night, and, being deceived by the shadows of the trees, imagined he saw objects along the road which he mistook for pedestrians, going in the same direction as his car; he turned out of the road to avoid them, not knowing the boys were sled riding, though it appears they had been doing so for some time.
We have had several cases before us of right-angle collisions between sleds and vehicles; as. to such circumstances, where there is no testimony to justify a finding that a driver knew or had reasonable ground for knowing boys were sledding, or likely to be sledding, on a hill at the time of passing, and a sled, not under control, comes rapidly, without warning or opportunity to apprehend its approach, and a collision takes place, there is no liability for damages to children who may be injured, as was the case in Eastburn v. United States Express Co., 225 Pa. 33, 35; but where a driver could see children at least fifty feet away from the crossing, or knew they were riding on the hill, he is required to give warning of his approach and take other reasonable means to guard against accident, consistent with the circumstances: Yeager v. Gately & Fitzgerald, Inc., 262 Pa. 466, 471.
Here we have an accident between crossings, where the driver deliberately passes to the wrong side of the street, immediately in the face of impending traffic. The speed of the car did not cause the accident; while the sled was not in a fixed position, the accident was bound to result
We are not satisfied the use of the highway by traffic on this occasion was of a nature to cause coasting on this street to be declared a nuisance by us. The court below did not commit error in submitting the case to the jury, either on the ground of defendant’s negligence or plaintiff’s contributory negligence. This case is easily distinguishable from Leslie v. Catanzaro, 272 Pa. 419.
There is one other question. A hand sled is not a vehicle within the contemplation-of the Act of June 12, 1919, P. L. 451, which requires at least one white light from one hour after sunset until one hour before sunrise. It may be such conveyance or vehicle as would have the right to use the cartway of a street: Stevenson v. United States Express Company, 221 Pa. 59. This act does not require a light on such sleds, — therefore, its absence not being in violation of an act of assembly, it is not, for this reason, the efficient cause of the injury,
The judgment of the court below is affirmed.
Dissenting Opinion
Dissenting Opinion by
I would hold the words “every vehicle” in the Act of June 12, 1919, comprehend sleds such as the one involved in the accident in this case, and when running at night upon a highway like Lincoln Drive, one of the main arteries of travel in suburban Philadelphia, they must display a light as provided in that act. In the absence of such statutory requirement, it seems to me that due and ordinary care demands that those using such a sled on such a highway at night must give warning of its presence by the means other vehicles use. As I view the testimony, the fault here was not with the defendant, but with the plaintiff, and there should be no recovery permitted; therefore, I dissent.