Opinion
October 14, 1936.
November 23, 1936.
Negligence — Automobiles — Collision with child in coaster wagon — Testimony — Striking out — Part of testimony competent — Charge to jury — Automobile driver prepared for anything child may do.
1. In an action for injuries sustained by the minor plaintiff, nine years of age, when, as he was seated in a small coaster wagon pushed by other boys on a street, he was struck by defendant's truck, in which there was evidence on behalf of plaintiffs that the wagon was proceeding at a distance of about three feet from the street curb, and defendant's truck was traveling in an opposite direction in a line with it, that the driver of the truck had a clear view of the wagon for a considerable distance ahead, and when within fifteen or twenty feet of it, swerved to the left, the front of the truck clearing the wagon but the rear wheel striking it, and in which defendant's version of the occurrence was that the coaster wagon was not proceeding along the street but that it came out from the sidewalk between two parked vehicles in the middle of the block at right angles to the pathway of the truck and was never in front of the truck at all, and in which one of plaintiffs' witnesses testified that she saw the wagon and truck approaching one another and saw the latter swerve, that the back part of it hit the wagon, that it was then she heard the crash, and that she did not really see the crash but heard it, it was not reversible error for the trial judge to refuse a motion to strike from the record all the testimony of this witness as to how the accident happened, instead of merely the one remark that the back part of the truck hit the wagon, especially where all the witnesses in the case testified that it was the rear wheel of the truck that struck the wagon. [322-4]
2. It was not reversible error for the trial judge to charge the jury that when a child is seen in front of or in the vicinity of a truck or automobile, the burden upon the driver is still greater than if the child were a grown person, since because of the uncertainty of its actions the driver must be in a position at all times to be prepared for anything the child might do, where the jury was properly instructed that if the wagon darted out to the side or in front of defendant's truck at too close range for the driver of the truck to have been reasonably able to avoid the accident there would be no liability on defendant, and where the charge as a whole could not have been misinterpreted to mean that under the circumstances described the driver must have been prepared for anything the child might do. [323-4]
Before KEPHART, C. J., SCHAFFER, DREW, LINN and STERN, JJ.
Appeals, Nos. 163 and 164, March T., 1936, by defendant, from judgments of C. P. Allegheny Co., Jan. T., 1933, No. 1283, in case of Thomas Wilson, a minor, by mother and next friend, Mary McLaughlin, and Mary McLaughlin, in her own right v. Metropolitan Petroleum Corporation. Judgments affirmed.
Trespass for personal injuries. Before RIMER, P. J., specially presiding.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiffs in sum of $6,500. Defendant appealed.
Error assigned, among others, was refusal of new trial.
D. H. McConnell, for appellant.
Henry Kauffman, with him Louis Little, for appellees.
Argued October 14, 1936.
Minor plaintiff, nine years of age, was seated in a small coaster wagon pushed by two other boys on Seventh Avenue, between West and Hayes Streets, in Homestead. According to plaintiffs, the wagon was going east at a distance of about three feet from the north curb, and defendant's truck was traveling west in a line with it. The driver of the oncoming truck had a clear view of the wagon for a considerable distance ahead, and when within fifteen or twenty feet of it swerved to the left, the front of the truck clearing the wagon but the right rear wheel striking it and severely injuring minor plaintiff. Defendant's version of the occurrence was that the coaster wagon was not proceeding along Seventh Avenue but that it came out from the sidewalk between two parked vehicles in the middle of the block at right angles to the pathway of the truck and was never in front of the truck at all. The case thus presented a clear issue of fact for the jury, which rendered a verdict for plaintiffs. Defendant's appeal is from the refusal of its motion for a new trial.
There are two assignments of error. The first is based upon the fact that one of plaintiffs' witnesses, a Mrs. Shea, testified that she saw the wagon and truck approaching one another and saw the latter swerve; "the back part of it hit the wagon and that is when we heard the crash. We didn't really see the crash, but we heard it." Counsel for defendant immediately asked to have this witness's testimony stricken from the record "as to how the accident happened, inasmuch as she said she didn't see it happen." The court refused the motion. In this there was no reversible error. The motion was technically objectionable because it was to strike out all the testimony of the witness as to the happening of the accident instead of merely the one remark that the back part of the truck hit the wagon. Moreover, defendant was not harmed by the witness's statement because all the witnesses, including defendant's driver, agreed that it was the rear wheel of the truck that struck the wagon. The driver Warren was asked: "Q. The front wheels of your car didn't strike the boy? A. No. . . . Q. So, it was the back wheel? A. The back wheel hit him, the right hind wheel hit him. Q. Was it the outside back wheel? A. Right hind wheel."
The other assignment of error complains of a sentence in the court's charge to the effect that, "when a child is seen in front of or in the vicinity of a truck or automobile, the burden is still greater than if that child were a grown person, because it is because of the uncertainty of their actions that the driver must be in a position at all times to be prepared for anything the child might do, because their actions cannot be so well accounted for." It is true, as a legal proposition, that the mere fact that a child is seen in the vicinity of a truck or automobile does not, under all circumstances, require the driver to be prepared for "anything the child might do." A reading of the entire charge, however, indicates that the learned trial judge's meaning could not have been thus misinterpreted. The jury was properly instructed that if the wagon darted out to the side or in front of defendant's truck at too close range for the driver of the truck to have been reasonably able to avoid the accident there would be no liability of defendant. The thought that the trial judge evidently intended to convey was that, where the operator of a vehicle sees a child before him and has reasonable time to act in the situation, he must take into consideration, as a factor governing his conduct, the likelihood of the child's acting capriciously instead of in the logical manner to be expected of an adult. This principle is expressed in Silberstein v. Showell, Fryer Co., 267 Pa. 298, 306, where it is said: "When an automobile driver deflects his car to pass around a little child, he must expect from it (the most natural thing from one of this age) some heedless, thoughtless, capricious act, the negligent act which comes from childish sportiveness, characteristic of an immature mind."
The assignments of error are overruled and the judgments are affirmed.