227 Pa. Super. 320 | Pa. Super. Ct. | 1974
Opinion by
This is an appeal by plaintiff from the lower court’s granting of defendant’s motion for a directed verdict in a trespass action.
Minor plaintiff, Michelle E. Kauffman, was a rear seat passenger in an automobile operated by Thelma Troup, who was killed in a collision between her automobile and the truck of the defendant, Carlisle Cement Products Co., Inc., which at the time of the accident was driven by an employee of the company, Clyde Myers. Thelma Troup’s husband, Lawrence L. Troup, is the administrator of the estate of his deceased wife and was made the additional defendant in this case.
The accident occurred at Intersection of Routes 944 and 34 in Cumberland County. Thelma Troup, the deceased driver was travelling westward on Route 944
The more serious question surrounds the testimony of the minor plaintiff, Michelle K Kauffman, who was a 10-year old fourth grader at the time of trial and 9 years old at the time of the accident. She testified that the Troup car in which she was a passenger had stopped at the stop sign and then pulled out into the intersection. She stated that as the Troup car entered the intersection she looked to her left and saw defendant’s truck 40 to 50 feet away and a few seconds
It appears that plaintiff’s counsel was not given the opportunity to examine the minor plaintiff on her
The lower court, in its opinion, cited cases setting forth the law regarding competency of Avitnesses to testify as to speed. See Dugan v. Arthurs, 230 Pa. 299, 302 (1911); Sapsara v. Peoples Cab Company, 2 Pa. D. & C. 2d 22 (1954), affirmed per curiam 381 Pa. 241 (1955); Connolly v. Bell Telephone Company of Pennsylvania, 83 Pa. D. & C. 342, 345 (1952). In this regard we agree Avith the lower court. But, as the lower court indicates in referring to the Connolly case, supra: “In
We also are of the opinion that there was sufficient evidence presented for the jury’s consideration as to whether or not there was negligent operation of the defendant’s truck at the intersection in the inability of the driver to stop the truck before striking deceased’s car when the truck was 40 or 50 feet away from deceased’s automobile at the time minor plaintiff saw it. It is not so clear that reasonable men could not differ that the driver of the truck, going fast enough to drive the front wheels over the roof of deceased’s car, had his truck under proper control and speed, under the circumstances of this case.
In view of the foregoing, we will not consider plaintiff’s objection to the lower court’s refusal to consider the assured clear distance ahead rule.
No appearance was entered as to the additional defendant and consequently this case proceeded to verdict against the additional defendant only.
ALI, Model Code of Evidence, Rule 101, Illustration 1, sets forth the following example: “W, a child under 7 years of age is called to testify to an event occurring when he was only 5 years of age. The judge finds that, while W is incapable of making understandable answers to some pertinent questions which might be asked, he is not incapable of making understandable answers to appropriately framed relevant questions sufficient in number and variety to constitute reasonable direct and cross-examination. W is qualified to be a witness.”