200 A. 581 | Pa. | 1938
The plaintiffs reside in Schuylkill County on a farm located on Highway Route 443 between Pine Grove and Suedberg. On the morning of December 31, 1934, Paul and Gladys, minor children of plaintiffs, while upon that highway on their way to the public school, were struck and instantly killed by the defendant's coal truck. The school is located on the same highway about a half mile to the east of plaintiffs' farm. Gladys was then thirteen, and Paul was eleven years of age. Gladys was partially crippled. Although she could walk within her home without crutches, and outside with one crutch, her condition was such that she was required to go to school in a wheel chair equipped with pedals similar to those of a bicycle.
On the morning of the accident the two children left home between eight and nine o'clock, accompanied by their older brother John, who was fourteen years of age. John carried their three lunch baskets, and Paul pushed his sister in the wheel chair. John walked with them approximately half the distance to school, and then proceeded alone. Upon his arrival at the school he put away the lunch boxes and stood at the east window watching for his brother and sister to arrive, so that he could assist *531 Paul in carrying the wheel chair into the school house.
Prior to the accident Paul was pushing Gladys in the wheel chair along the right side of the highway, close to its edge. About four hundred and fifty feet east of the schoolhouse is a "School Slow" sign facing toward the east, the direction from which the children and defendant's truck approached. After Paul had wheeled his sister about one hundred and twenty-five feet past the sign, and when they were within about three hundred feet of the school, a coal truck owned by the defendant and operated by his employee, loaded with five tons of coal, came from the rear of the children at a speed of thirty miles an hour, and struck and killed them instantly. The force of the impact was so great that Paul was thrown some thirty feet over the right front fender of the truck, while Gladys was hurled four to five feet into the air, and to the right of the roadway. The wheel chair was demolished. The truck went eighty-five or ninety feet before it was brought to a stop.
The highway is of concrete construction and is eighteen feet in width. Where the accident happened there is a straight and level stretch for a distance of two hundred and seventy-five feet, affording an unobstructed view over two hundred feet on either side of the "School Slow" sign. Both to the east and west of this level stretch the grade is slightly downward. The berm of the road consists of dirt shoulders varying in width from three to seven feet on the north side and of a greater width on the south side. There were no other vehicles on the highway at the place where the truck hit the children. On the day in question it was clear, the sun was shining, and the highway was dry.
This suit was instituted by the parents to recover damages for the death of their children. The jury rendered a verdict in favor of the plaintiffs, and, at the request of defendant, indicated the amount awarded for the loss of services of each child, for the funeral expenses *532 and for the value of the wheel chair. The defendant's rule for new trial, and the motion for judgment non obstante veredicto were overruled, and from the entry of judgment on the verdict the defendant has appealed.
The defendant concedes that the question of his negligence was for the jury's determination. He does not contend that the plaintiffs permitted children of tender years to play upon or roam over a dangerous highway unattended, but urges that they were contributorily negligent in exposing the children to danger by allowing them to walk and to push the daughter in a wheel chair along a public highway, accompanied only by the older brother, who subsequently left them to their own resources.
In the absence of sidewalks the rights of pedestrians upon the highway are equal to those of motor vehicles; and a pedestrian walking along the right side of a paved roadway is not required to turn and look for approaching traffic:Petrie v. E. A. Myers Co.,
Since it is not negligence to walk along a highway in the absence of sidewalks, it cannot be held that parents, who permit their children to do so, are at fault. To hold otherwise would be to declare that it is negligent conduct to adopt the accepted and usual means of pedestrian travel along rural highways. The rights of children to walk upon the highway are no less than that of adults. As was said by Judge KELLER inHammaker v. Watts Twp.,
The measure of children's responsibility for contributory negligence is their capacity to understand and avoid danger. The plaintiff's children in this case were eleven and thirteen years of age, respectively, and consequently cannot conclusively be presumed to be incapable of appreciating and guarding against danger: Nagle v. Allegheny Valley R. R. Co.,
This case is controlled by the recent decision of this Court in Lucas v. Bushko,
The defendant's objection to the admission of evidence of the earning powers of other children in the vicinity is not well taken. A fair reading of the testimony indicates that this evidence was introduced for the sole purpose of showing the average earnings of children employed in the various industries in that district. The purpose was not, as the defendant alleges, to obtain from the witnesses an expression of their opinion concerning the value of the services of the deceased children. The purpose for which the evidence was introduced is a proper one.
In cases of this character evidence of the earnings of children in the same locality is admissible for the purpose of indicating the probable earning capacity of the deceased child. Otherwise the jury would have no facts before it upon which to found the basis of a reasonable opinion of the probable earnings of a deceased child. In Ditchfield v. Tharp,
Here the evidence complained of consisted of the testimony of employers of male and female minors between the ages of sixteen and twenty-one years in different industries in the locality concerning the average wages of boys and girls employed by them. The testimony concerning the earnings of girls was restricted to those who by reason of physical handicaps were unable to do work requiring that they be on their feet any considerable length of time. It is clear that evidence of this character is the most competent obtainable to qualify the jury to determine the extent of the plaintiff's loss, because only on the basis of such evidence may the jury properly estimate the plaintiffs' damage.
The defendant argues that the amounts of the verdicts awarded for the loss of the services of the two children are excessive. It is well settled that a verdict of a jury will not be disturbed unless the amount of the award is so grossly excessive as to shock our sense of justice: Linhoss v. Hodgson,
Judgment is affirmed. *536