Bowman v. Stouman

• Decision Date: 30 January 1928
• Docket Number: 109,108
• Citation: 141 A. 41,292 Pa. 293
• Parties: Bowman et al. v. Stouman, Appellant
• Court: Pennsylvania Supreme Court

141 A. 41

292 Pa. 293

Bowman et al. v. Stouman, Appellant

Nos. 108, 109

Supreme Court of Pennsylvania

January 30, 1928

Argued January 4, 1928

Appeals, Nos. 108 and 109, Jan. T., 1928, by defendant, from judgments of C.P. No. 4, Phila. Co., Sept. T., 1925, No 10267, on verdicts for plaintiffs, in case of Spencer M Bowman, by his mother and next friend, Gladys Bowman, and Gladys Bowman, in her own right, v. Bernard Stouman. Affirmed.

Trespass for personal injuries to minor eleven years old. Before AUDENRIED, P.J.

The opinion of the Supreme Court states the facts.

Verdicts and judgments for $7,000 and $1,000 for Spencer M. Bowman and Gladys Bowman respectively. Defendant appealed.

Error assigned, inter alia, was refusal of binding instructions for defendant, quoting record.

The assignments of error are overruled and the judgment of the court below is affirmed.

Layton M. Schoch, with him Philip L. Leidy, for appellant. -- The court erred in instructing the jury in such a manner as in effect, if not in fact, to give binding instructions for plaintiffs: Wiszginda v. Traction Co., 212 Pa. 360; Wiser v. Baking Co., 289 Pa. 565; Watson v. Lit Bros., 288 Pa. 175; Virgilio v. Walker & Brehm, 254 Pa. 241; Flynn v. Moore, 88 Pa.Super. 361.

William A. Gray, with him H. B. Bornemann, for appellee. -- The charge of the court was impartial and bore no semblance of binding instructions for plaintiff: Anderson v. Wood, 264 Pa. 98.

Whether the minor plaintiff was struck at a street crossing or some distance removed from it, the charge of the court correctly defined defendant's duty and did not place upon him too high a degree of care: Lamont v. Express Co., 264 Pa. 17; Robb v. Cab Co., 283 Pa. 454; Rankin v. Baking Co., 272 Pa. 108; Anderson v. Wood, 264 Pa. 98.

Under the evidence, the court below could not have given binding instructions for defendant or enter judgment notwithstanding the verdict: Melcher v. Stengel, 288 Pa. 522.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

This action was to recover damages for injuries inflicted on Spencer Bowman, a minor, through the negligence of defendant in operating his automobile. The jury found for the plaintiffs, and assessed the damages to the son at $7,000, and to the mother at $1,000. The court below refused motions for judgment n.o.v. and for a new trial, hence this appeal.

The accident occurred on October 19, 1925, on the cartway of Columbia Avenue, at or near Marston Street in Philadelphia. Columbia Avenue runs east and west. Spencer M. Bowman, the eleven year old son of Mrs. Gladys Bowman, at eight on the morning of October 19, 1925, left his home for school. He went westward on the northern sidewalk of Columbia Avenue, and, according to his testimony, turned to walk across the cartway of Columbia Avenue at the regular crossing on the east side of Marston Street. This evidence was corroborated by the testimony of Mrs. Marvel, who had observed him from the front widow of her grocery store, on the southeast corner of Columbia Avenue and Marston Street. Defendant and his witnesses testify that the boy attempted to cross to the southwest corner of Columbia Avenue and Marston Street, running on a diagonal line from a point immediately south of Yonah Hall, which is some fifty or sixty feet west of the crossing.

The minor plaintiff and his witnesses testified that he was struck as he stepped over the south rail of the eastbound car track, the impact throwing him into the air. Stouman and Officer Yeager stated that Bowman, after pausing to adjust his stocking, suddenly darted in front of the motor car which struck him with the right end of its bumper while he was on the eastbound track, Stouman having, to avoid running over him, turned the automobile sharply toward the north. They denied he was thrown into the air, and asserted he seized the bumper of the car with both hands and saved himself from being run over by clinging to it. "It was conceded by the defendant that he had seen the boy leave the northern sidewalk of Columbia Avenue and that he had a clear view of him as he crossed the street; also that at the rate at which it was moving, he could have stopped his automobile within half of its length, that is, in the space of five or six feet. The femur, or thigh bone of the child's right leg was fractured in the accident."

It is urged that no negligence is shown on the part of the defendant; the mere fact that an injury occurs in a public highway does not raise a presumption of negligence: McAvoy v. Kromer, 277 Pa. 196; Flanigan v. McLean, 267 Pa. 553, 556. A jury cannot be permitted to find anything negligent which is less than the failure to perform a duty: Bardis v. Phila. & Reading Ry., 267 Pa. 352, 355. When the case was argued at the bar of this court, there was not much discussion on this question. Under plaintiff's evidence, it is apparent that defendant was negligent. The boy was struck at a public crossing, and thrown into the air, the car skidding after he was struck. The speed of the car and the manner of operation would seem to show, or at least it was sufficient from which the jury could find, that the car was not under control when it approached the crossing, and, therefore, it was negligently operated.

Defendant contends that the court below, in charging the jury, disregarded his theory of the case and held the defendant to duties not required by law. Furthermore, he urges that the trial judge confused the law with respect to the different duties of a driver at a regular street crossing and between crossings, and that the charge in effect amounted to binding instructions for the plaintiffs. Appellant's theory of the case was that the accident took place between crossings, while plaintiff's case showed it to be at a crossing. The disputed question of fact was, of course, for the jury, under proper instructions. We cannot accept appellant's theory solely, but must consider it in relation to plaintiff's case, and whether the charge of the court sufficiently covered it.

The proof necessary to show negligence when an accident occurs between crossings is different from that required where the injury occurs at a public crossing: McAvoy v Kromer, supra, at p. 199. The degree of care required in operating a car between crossings is not as great as it is at a public crossing. The driver cannot, however, carelessly inflict injuries on users of highways between crossings. His duty is governed entirely by the circumstances of whether he saw such persons in the way in time to avoid hitting them, or whether he should anticipate their acts when they have committed themselves to a dangerous position. As stated in Silberstein v. Showell, Fryer & Co., 267 Pa. 298, and in McAvoy v. Kromer, supra, a driver is not bound to anticipate that a child will suddenly dart from the side of the street; but if at a designated place where there is anything to challenge his attention, and warn him that he should expect heedless acts, it becomes his duty to avoid, if possible, an accident: Frank v. Cohen, 288...