Berk v. LeQuin

• Decision Date: 09 October 1963
• Citation: 412 Pa. 88,194 A.2d 136
• Parties: Todd BERK, a minor, by his guardian Gabriel Berk, and Gabriel Berk and Phyllis Berk, in their own right, Appellants, v. Lillian L. LeQUIN.
• Court: Pennsylvania Supreme Court

194 A.2d 136

412 Pa. 88

Todd BERK, a minor, by his guardian Gabriel Berk, and Gabriel Berk and Phyllis Berk, in their own right, Appellants, v. Lillian L. LeQUIN.

Supreme Court of Pennsylvania.

October 9, 1963.

Milford J. Meyer, Meyer, Lasch, Hankin & Poul Philadelphia, for appellants.

James J. McEldrew, Elston C. Cole, Philadelphia, for appellee.

Before BELL C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

MUSMANNO Justice.

Todd Berk two and a half years of age, decided around noontime on November 22, 1957, to take a walk by himself. He entered upon Andrews Avenue (Philadelphia), heading westwardly. When he got to Ogontz Avenue, which intersects Andrews, he stopped since Ogontz Avenue is a wide thoroughfare, accommodating two street car tracks and space for double lane automobile traffic on either side of the car tracks. He watched a woman with a gocart, two children, and a dog cross Ogontz and then he ventured forth. When he reached the second traffic lane, his solitary jaunt was violently terminated by an automobile being driven by Mrs. Lillian L. LeQuin which struck him with such force that, according to one witness, he 'bounced up on the hood and bounced down.'

A lawsuit followed and the jury returned a verdict in favor of the motorist defendant. The plaintiffs, the child and his parents, moved for a new trial which was refused, and an appeal to this court followed.

The plaintiffs contend that they are entitled to a new trial because the judge improperly instructed the jury. The principal factual question at the trial was whether the child darted out into Ogontz Avenue or whether he proceeded to cross it at a normal gait. One witness, Arthur Ebischbach, testified that he saw the woman and two children cross ahead of Todd. He described the dog, which also made the crossing, as walking 'casually.' Todd, he said, hesitated at the curb for 30 seconds and then moved 'leisurely' into Ogontz and his unintended flight over the automobile's hood.

Another witness, Eugene Pflaumer, testified that the child stopped at the curb, 'hesitated' and then proceeded into the street. He did not see the actual collision.

A witness, Tillie Ellis, testified that the child hesitated at the corner and then 'dashed out' into the street.

The Trial Judge charged the jury:

'A driver is not bound to anticipate what a child in a place of safety, upon a sidewalk, may do, or that such a child would suddenly dart from the side of the street and run across the street immediately in front of the driver. You must determine from the evidence whether the child proceeded in a normal manner across the street as Mr. Ebischbach testified, or whether you wish to accept the testimony of Mrs. Ellis that he dashed out or darted out. But if you accept Mrs. Ellis' testimony, then you must analyze that further and determine whether in your judgment this was a case where the boy darted out suddenly from the side of the street immediately in front of the vehicle from a place of safety, or whether he did not so dart out in a sudden manner.

'If he darted out suddenly, you determine that, there can be no recovery, because such a situation does not present a case where a driver can be held negligent under those circumstances.' (Emphasis supplied)

The italicized portion of the charge is not the law. If a child, even imprudently and recklessly, runs out into the street and an oncoming motorist sees him, or should see him, the motorist has the duty under the law and under the most fundamental rules of humanity to make every effort to stop to avoid striking the child.

A motorist must exercise a far greater degree of care where an infant is involved than where the pedestrian has reached an age of discretion and can maneuver with mature independent judgment. A motorist cannot make fair game of children at a street intersection under the theory that one cannot be responsible for their impulsiveness. A child is what it is, and the younger the child the less sense of danger it possesses. Not only that, an infant of 2 1/2 years is limited in vision. It eyes are not on a much higher physical level than those of a lamb, and it is equally as defenseless as that meek animal, proverbially recognized as the symbol of helplessness.

The defendant's counsel argues in his brief that there was a parked car on the east side of Ogontz Avenue and 'that all the evidence showed that the child suddenly darted out from the sidewalk in front of the parked automobile and was immediately struck by the...