*1 Appellant, v. Seibel. Staszak, Argued September 30, Before C. J., Jones, Bell, Bok JJ. Musmanno, Jones, Cohen, Eagen, K.
Gene with him Lynch, Leonard J. Paletta, & McArdle, Harrington McLaughlin, for appellants. Frederick V. for appellee. Egler, Opinion by 1960: 15, Boic, November Mb. Justice plain- for defendant returned a verdict The jury *2 below court the which tiff moved for a trial, on the verdict entered was refused. Judgment appealed. the plaintiff on hill, down were walking north,
Five boys recrea- going Whitaker in Allegheny County, Way, an near happened The accident tion to a club. boy’s faced two was with and the jury S-curve road, on hit walking was while the boy versions: one, across of the car sweeping the fender the curbstone by off the curbstone the moved other, and the boy it, into the side of the car. ad- then twelve and a half was years old,
Plaintiff, his the with against on curb mittedly walking traffic, who was of a companion left arm shoulder dumped path to his left on a where ashes were walking strung The other were in lieu of a solid sidewalk. boys the accident. Plaintiff said out ahead and did see on which was that he remained the curb, explicitly from it and 8 inches and did high inches wide The two-lane road 38 feet 6 inches into the street. was plaintiff on whom was testified leaning wide. The boy of the car did not mount the curb the wheels over swept picked plaintiff the fender it, but that up, him two car let him fall in lengths and after carrying One of the said that he the car boys the street. saw close to him and instinct from by stepped a little ash The accident path. happened into the curb o’clock in the at about seven when it evening April 9, and oncoming cars, including was dark, defendant’s, on. headlights their had rejected by
This version was which jury, chose the defendant. to believe that he testified saw group
Defendant of boys feet from them. fifty sixty he was He when hour. He at 25 to 30 miles uphill per going steeply I there was [plaintiff] said: “As the boy went the car.” stopped awful thud. heard the thud and He then front of his out, in got car, seeing nothing asked and found the to the rear. When he “I had he said: pulled away what boy happened, from and he friend.” 1-Iis were my headlights alight two to three feet from the curb as driving passed and he said that he was alert boys, spe- too close to the curb. He possibility coming said bumper denied that hit cifically implication that: “it did not happen that way.” is obvious that into the plaintiff stepped off the curb side of the car.
Since there was evidence to both support versions, it province is our to choice. There upset jury’s is than nothing despite counsel’s weightier this, argu- ment that defendant’s was wanton and that negligence must have been or confused, prejudiced, biased. We feel that there was no such thing case the usual issue of nothing beyond credibility over factors involving negligence. ordinary
Plaintiff one trial suggests the trial error, failed to the doctrine judge of specify applies as it to a twelve and a half years objection old. No made was on con- charge in- tributory negligence generally counsel, though had no vited, objections corrections to offer at end.
We feel that the element whose lack is now asserted is covered in the adequately and in charge the testi- plaintiff appeared The mony. and his testified, was known to the He said: age jury. “Most of the time I would walk curb because have a habit of . on the curb. . . And walking knew the danger of traffic.” the trial said charge speak- this,
497 what we “He claims of the defendant: ing . . . out. have darted must call a out’, hoy ‘darting out highway, darts from a “If a person suddenly if you is children, as to except [especially?] at particular on a sidewalk playing any see children . . has driver of a motor vehicle . then a point, fact of care into account taking observe a degree heed- out out that children are or dart likely path.” into their lessly basic think that adequately suggests
We
the conduct of a
difference between
child and
counsel
Had
wanted
refinement
greater
adult.
for it:
have
see James v.
401
could
asked
Ferguson,
162 A. 2d
If,
Pa. 92
under the guise
(1960),
grant
process
fundamental
because
error,
formula could
better
conceivably
found
legal
be no end to litigation.
conceptions,
clear error
We see no
of hnv
palpable abuse by
of its
the court below
discretion: Super v. West Penn
Power
It is in tort law required degree care not the of as that are held to same Railways In Parker St. of adults. v. Co., of a child’s this Court said: “The measure 441, 438, capa- responsibility is his danger. city . . The standard to understand and avoid average responsibility capacity of of is the others of age experience, to this and standard the same in the of should be held absence evidence on the child subject.” Dynes Bromley, the the of v. 208 Pa. case 633, plaintiff age. years said: was 13 of This Court
minor boy’s responsibility for contribu- of the “The measure capacity tory negligence is to understand avoid his responsibility danger. in standard of to The which, subject, on will held of evidence the be the absence age.” average capacity of others of same the the charged none trial court of this. On the The jury from the the could of instructions court, basis year-old boy held that have believed well 12% grown responsibility person. of as a to the same the is not law. course, Of affirming in of The Court, says: appeared “The of a new trial, refusal age jury.” But was known to the and testified, point Certainly in case. that is them see the but no one told and did could age, Wesley years held of at person responsibility as 22%, same 17, even speak charged jury: court “Now, trial ap- contributory negligence. The same definition
of any negligence part plies means but that, plaintiffs action which contributed to the through plaintiff’s negli- happening the accident part. on his And gence of due care or lack *5 negligence Pennsylvania contributory is if there is then slight recovery, no can be no matter how might contribution be.” language. negligence” strong says “any
This is It part boy; says plaintiff, young on the of the this it slight” negligence might boy’s “no matter how be, “slight negligence” may here not recover. But a as 12%-year-old boy from indicated could well absolve a contributory negligence though prevent a even it could 22%-year-old recovering. man from person suddenly
The trial also said: “If a except highway, darts out from a as to children, any you playing is if see children on a sidewalk at point, particular then a of a motor vehicle driver degree taking a into automobile has to observe of care likely the fact that children are out account path.” heedlessly dart out into their Opinion quoting language Majority adds person says: suddenly It “If from a word. darts out except [especially?] highway, etc.” as to children, jury have the benefit of But the did not this Court’s retroactive intuition and addition. But even if it had, charge still tell the about the amended expected 12%-year-old of care children. language quoting After above indicated, adequately says “We think that this suggests difference between the conduct of the basic think it does. that of an adult.” don’t child and language I don’t think that As a matter of fact, anything suggests useful the case which is at all speaks playing “children on a sidewalk.” because alleged any- no it was evidence, There is Wesley “playing on a sidewalk.” one walking along a road. subject charge the court to failure of applies to children was as it SOO
a basic fundamental error in this case and even plaintiff’s exception though counsel took no charge, the is still entitled to new trial. White v. said: we “Just what Moore, 411, 417, errors are be considered basic or fundamental must depend necessarily upon the facts of each case.” Since the facts in the case at bar had to do with a 12%-year-old being anything child, cannot conceive of charging more fundamental and basic than by 12%-year-old of care to be exercised child. Opinion supports its refusal of new guise trial the statement: under the funda- with “If, process grant mental because a better error, conceivably legal concep- formula could found for litigation.” no there would be end tions, “guise of fundamental This is error.” It grant actual error. fundamental a new trial being worry litigation.” “no and not about end to justice Litigation when should end has been achieved along is abandoned as he when walks hoped-for fair trial. road to a
Majcher Appellant. Bronder, v.