Fabel v. Hazlett
| Decision Date | 19 July 1945 |
| Citation | 43 A.2d 373,157 Pa.Super. 416 |
| Parties | Fabel, Admr., v. Hazlett, Appellant |
| Court | Pennsylvania Superior Court |
Argued April 16, 1945.
Appeals, Nos. 174 and 175, April T., 1945, from orders of C P., Washington Co., Nov. T., 1943 and Feb. T., 1944, Nos. 244 and 264, in cases of Joseph Fabel, Administrator of Estate of Anna Fabel, deceased, v. Helen Hazlett and Joseph Fabel et ux. v. Helen Hazlett.
Actions in trespass for wrongful death. Before Carson, J.
Verdicts for administrator, in sum of $ 500.00, and for parents in sum of $ 272.50; motions by defendant for judgment n.o.v. refused; motions by plaintiffs for new trial granted. Defendant appealed.
Francis H. Patrono, for appellant.
John J. Moschetta, for appellee.
OPINION
These actions in trespass were commenced by the father as administrator of the estate of his deceased minor child, and by the father and the mother in their own right to recover damages for the death of their eleven-year-old daughter. The cases were consolidated for trial (Vincent et ux. v. Philadelphia et al., 348 Pa. 290, 293, 35 A.2d 65); and the verdict for the administrator was $ 500, and for the parents $ 272.50. Defendant's motions for judgment notwithstanding the verdicts were refused, and plaintiffs' motions for new trial were granted on the ground that the damages allowed were inadequate. Defendant has appealed from both actions of the court below, and the orders are assigned as error. See Silveus v. Grossman et al., 102 Pa.Super. 365, 372, 156 A. 716, affirmed 307 Pa. 272, 161 A. 362.
The reasons given by appellant in support of her motions for judgment notwithstanding the verdicts are (1) that appellees failed to adduce evidence of negligence on part of appellant; and (2) that the deceased child was guilty of contributory negligence as a matter of law.
We are of the opinion that the trial judge properly permitted the jury to determine the question of appellant's negligence and the question of the child's contributory negligence, as the evidence was sufficient to support the conclusions of the jury on both issues.
On July 30, 1943, appellant and two companions were driving on the Beallsville-Marianna road toward Beallsville, Pa. On this day the child, prior to her fatal injury, went down a private lane on appellant's right that led into the highway. The child was visiting at a neighbor's home. There is a curve in the highway before the lane is reached, with a straight portion of road, in the direction from which appellant's car approached, between the end of the curve and the lane where the fatal accident occurred. The weather was clear, the sun was shining, the road was dry, the time was 3:30 p. m. The child on the highway was struck by the door of appellant's car, hurled to the roadway, and died while en route to the hospital. Appellant's car swerved to the left sufficiently to avoid striking the child with the front of the car. There was testimony that appellant's car traveled a distance of 140 feet from the scene of the accident, and stopped with the front of the car on the left-hand side of the highway, and the rear of the car projecting over the middle line thereof; and that black tire marks began a short distance south of the point of the accident and continued to where the car stopped. A witness testified that she lived near the scene of the accident, that her attention was called to the highway by the roar of a motor passing by, that she looked and saw appellant's car going in the direction of Beallsville, that she watched it for a distance of 125-150 feet until it passed out of view, that she next heard a thump, and that she ran to the highway and saw the body of the child about 25 feet north of the center of the lane. She also testified that the speed of appellant's car was 55 miles per hour or better, and that no horn was sounded before the accident happened. A member of the Pennsylvania State Police testified that appellant stated to him that she had seen the child wheeling a tire down the lane when she was 70 feet away, and that she neither reduced the speed of her car nor blew the horn because she expected the child to stop before reaching the highway. [1] Appellant herself testified that she was driving 25 miles per hour; that she did not see the child until she had reached a point 10 or 12 feet from the lane, at which time the child was only 5 or 6 feet from the highway; that she stopped her car in about 6 feet after striking the child, and then drove on to a place where she could get the car off the highway. She denied telling the state police that she had observed the child for a distance of about 70 feet. The two occupants of appellant's car corroborated her story of the accident, and testified that the child ran into the car; but one of the occupants admitted that the brakes were not applied until after the child was struck, and that the speed of the car was not reduced until after the accident had occurred.
This is a case where the only eyewitnesses to the accident were those who were involved in it. But the inferences to be drawn from their statements and from the attending circumstances as described by other witnesses and as shown by the photographs introduced in evidence were for the jury. The credibility of the witnesses was for their consideration, and they could reject any testimony notwithstanding that it was uncontradicted. German v. Riddell, 149 Pa.Super. 647, 651, 27 A.2d 680. Appellees are entitled to the benefit of all the affirmative facts helpful to their case, notwithstanding such facts may have been adduced by appellant's testimony. Silberstein et al. v. Showell, Fryer & Co. (No. 1), 267 Pa. 298, 304, 109 A. 701.
Our appellate courts have frequently said that it is the duty of a driver of a motor vehicle at all times to have his vehicle under such control that it can be stopped before injury results to any person in any situation that is reasonably likely to arise under the circumstances. Sweet et al. v. Rounds et al., 349 Pa. 152, 156, 36
A.2d 815; Lane v. Samuels et al., 350 Pa. 446, 448, 39 A.2d 626. This is especially true when thedriver's view is obstructed by a curve, or in any other manner, as he is bound to anticipate that some hazard either to himself or others lies immediately beyond his range of vision. Haney et al. v. Bobish et al., 153 Pa.Super. 191, 198, 33 A.2d 268. That appellant approached the turn in the highway at a speed too great to permit adequate control of her car after she saw the child is supported by the evidence. Where a driver sees a child in a place of danger, or has reason to apprehend that it might run into a place of danger, and has sufficient time to stop his car if under proper control, it is his duty to exercise such care as would be reasonably necessary to avoid a collision. Fedorovich et al. v. Glenn, 337 Pa. 60, 64, 9 A.2d 358. As to children, his duty requires that the vehicle be under such control that he can stop it in a reasonable time in an emergency, and he must give due consideration to the fact that children do not ordinarily exercise the same degree of caution for their own safety as adults, and act accordingly. Haney et al. v. Bobish et al., supra 153 Pa.Super. 191, 198, 38 A.2d 268. In Frank et al. v. Cohen, 288 Pa. 221, at page 225, 135 A. 624, at page 625, it is said...
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