Chapple v. Sellers

• Citation: 76 A.2d 172,365 Pa. 503
• Parties: CHAPPLE et al. v. SELLERS (three cases). Appeal of CHAPPLE.
• Decision Date: 13 November 1950
• Court: United States State Supreme Court of Pennsylvania

76 A.2d 172

365 Pa. 503

CHAPPLE et al. v. SELLERS (three cases).

Appeal of CHAPPLE.

Supreme Court of Pennsylvania

November 13, 1950

Argued September 26, 1950

Appeals, Nos. 93, 96, 147 and 148, March T., 1950, from decree of Court of Common Pleas of Cambria County, Dec. T 1947, No. 157, in case of Richard A. Chapple et al. v Raymond L. Sellers. Order affirmed.

Trespass for personal injuries. Before McKENRICK, J.

Verdicts for parent-plaintiffs in the sum of $4,638.74, and for minor plaintiff in the sum of $5,000; motion by defendant for judgment n.o.v. refused but new trial awarded. Plaintiffs and defendant, respectively, appealed.

Order affirmed.

John M. Bennett , with him Morgan V. Jones and Weimer, Bennett & Jones , for plaintiffs.

Russell R. Yost , with him Graham, Yost, Meyers & Graham , for defendant.

Before DREW, C.J., STERN, STEARNE, JONES, LADNER and CHIDSEY, JJ.

OPINION

MR. JUSTICE ALLEN M. STEARNE

These are appeals by a minor plaintiff and his parents from the grant of a new trial, the sole reason given by the court below being that it has committed an error of law in its charge.

We have frequently repeated the rule regarding a reversal of the award of a new trial. A recent pronouncement is Held, Admrx., v. Van Tiggelen et al ., 364 Pa. 317, 72 A.2d 73, where Mr. Justice JONES said, p. 318: "The burden assumed by the appellant in seeking a reversal of the order granting a new trial is indeed a very heavy one. The controlling principle has long been settled and has often been reiterated. One of the more recent utterances is contained in Marko v. Mendelowski, 313 Pa. 46, 47, 169 A. 99, later quoted with approval in Girard Trust Company v. George V. Cresson Company, 333 Pa. 418, 422, 5 A.2d 221, and again in Tupponce v. Pennsylvania Railroad Company, 358 Pa. 589, 590, 57 A.2d 898, where we said, -- 'we will not reverse an order awarding a new trial unless a palpable abuse of discretion on the part of the trial judge is disclosed or unless an erroneous rule of law, which in the circumstances necessarily controls the outcome of the case, if certified by the trial judge as the sole reason for his action.'"

The scope of the present review, therefore, is whether the trial judge did commit an error of law in his charge.

The facts are as follows: On the morning of October 27, 1945, minor plaintiff, a child of eight years of age, was playing on the sidewalk with several other children, at the corner of Rose Street and Edson Avenue, in Johnstown. Defendant was driving his truck, loaded with coal, in a northwesterly direction along Rose Street towards Edson Avenjue, which intersects Edson Avenue at a right angle. According to defendant's testimony, he stopped at the stop sign of Rose Street and proceeded around the corner in a northeasterly direction into and along Edson Avenue. The minor plaintiff was standing on the sidewalk near the rounded curb line, partly facing the direction from which defendant's truck was proceeding. He testified that while standing close to the curb he felt a hard blow on his shoulder. The next thing he remembers was that he was lying on the street near the curb and the rear wheels of the truck were coming at him. He was not run over by the wheels but was wedged between the tire of the rear dual wheel and the curb.

The court in granting a new trial stated that it committed error when it charged the jury, in effect, that, even if the truck did not pass so close to the curb that any overhang would strike a child on the sidewalk, the jury, nevertheless, could find negligence on the part of the defendant-driver, based on the position of the truck in the street, even though the minor plaintiff fell or was pushed off the sidewalk against the rear wheel or a part of the truck, behind the driver and necessarily beyond his vision.

When passing small children playing in a group on a sidewalk, the operator of an automobile has the jury to be attentive: Buchanan et al. v. Belusko et al ., 361 Pa. 465, 65 A.2d 386. He must exercise the care reasonably necessary to avoid an accident when approaching a place where there is reason to apprehend that children may come into a place of danger: Goodstein v. King , 298 Pa. 313, 148 A. 300; Fedorovich et al., v. Glenn , 337 Pa. 60, 9 A.2d 358; Ondrusek, Admr., v. Zahn , 356 Pa. 537, 52 A.2d 461; Fabel, Admr., v. Hazlett , 157 Pa.Super. 416, 43 A.2d 373.

When there is reason to...