Jones v. Spidle

• Decision Date: 13 September 1968
• Citation: 213 Pa.Super. 81,245 A.2d 677
• Parties: Jeffrey J. JONES, a minor, by His Parents and Natural Guardians, Robert E. Jones and Florence Jones, and Robert E. Jones and Florence Jones, in Their Own Right, Appellants, v. Mary C. SPIDLE and Charles P. Spidle, Partners, t/d/b/a Spidle's Meat Market and Kenneth L. Huhn.
• Court: Pennsylvania Superior Court

Page 677

245 A.2d 677

213 Pa.Super. 81

Jeffrey J. JONES, a minor, by His Parents and Natural Guardians, Robert E. Jones and Florence Jones, and Robert E. Jones and Florence Jones, in Their Own Right, Appellants, v. Mary C. SPIDLE and Charles P. Spidle, Partners, t/d/b/a Spidle's Meat Market and Kenneth L. Huhn.

Superior Court of Pennsylvania.

Sept. 13, 1968.

Daniel H. Shertzer, Lancaster, for appellants.

S. R. Zimmerman, III, Zimmerman, Zimmerman, Myers & Gibbel, Lancaster, for appellees.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING and HANNUM, JJ.

MONTGOMERY, Judge.

Plaintiff Jeffrey J. Jones, a minor, by his parents and natural guardians, Robert E. Jones and Florence Jones, and in their own right, brought this action against Mary C. Spidle and Charles P. Spidle, partners, doing business as Spidle's Meat Market, and Kenneth L. Huhn, their employe, for injuries sustained by Jeffrey J. Jones, then three years of age, on January 6, 1963, when he was struck by a delivery truck of defendants Spidle and operated by defendant Huhn in Lancaster, Pennsylvania. At the close of plaintiffs' case as to negligence, the defendants moved for a compulsory nonsuit, which was granted. A motion to remove this nonsuit being overruled the plaintiffs take this appeal.

A compulsory nonsuit may be entered only in a clear case, and only where there is no doubt as to the inference to be drawn from the evidence. Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965). When it is entered for lack of evidence to sustain the action it must be so clear that there is no room for fair and reasonable disagreement to it. Lasek v. Jaroschak, 192 Pa.Super. 350, 162 A.2d 25 (1960).

Viewing the evidence adduced on behalf of plaintiff as true; reading it in the light most favorable to him; giving him the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts, if any, in his favor as we are required to do in considering the entry of a compulsory nonsuit, the following facts may be taken as established. This accident occurred on Fifth Street in the City of Lancaster, Pennsylvania, in a residential district. Fifth Street at the point of the accident is a two-lane street nineteen feet three inches wide and is designated as a one-way street with the right lane designated for parking and the left lane for travel.

The minor plaintiff, Jeffrey, three years old at the time, had been seen playing with his brother Robert, then five years old, on the left side of the street about ten to fifteen minutes before the accident in which Jeffrey was struck by the front of a Volkswagen truck traveling 20 to 25 miles per hour, operated by Kenneth L. Huhn, an employe of the other defendants who owned the truck. A dent on the truck indicated that the impact had occurred between the right head light and the center emblem. The driver of the truck testified on cross-examination that he first saw the child inches to a foot in front of his truck, '* * * in fact the first time I saw him was when he was out in the street and he was about even with the right front of my truck. I immediately applied my brakes and I felt the front of the truck strike the child.' The truck traveled 115 1/2 feet before stopping, during part of which distance the child was being carried underneath the truck, and left two skid marks on the street, one thirteen feet in length and the other ten feet three inches.

The pertinent principles of law are clear in this case. If a child is in a place of danger on a public highway for sufficient time for the driver of an automobile in the exercise of due care to see him and stop his car, or otherwise avoid hitting him, the driver is guilty of negligence if he fails to do so. Zernell v. Miley, 417 Pa. 17, 208 A.2d 264 (1965); Berk v. LeQuin, 412 Pa. 88, 194 A.2d 136 (1963); Derr v. Rich, 331 Pa. 502, 200 A.2d 599 (1938). Although the duty of care of an automobile between intersections is not as great as such duty at an intersection, Purdy v. Hazeltine, 321 Pa. 459, 184 A. 660 (1936), for negligence to exist the evidence must establish that the child was on the highway and visible to the driver for a sufficient period of time to give the latter a reasonable opportunity to see him and avoid the accident. Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963). If a child suddenly comes into the...