Kuehne v. Brown
| Decision Date | 05 March 1917 |
| Docket Number | 243 |
| Citation | 257 Pa. 37,101 A. 77 |
| Parties | Kuehne, Appellant, v. Brown |
| Court | Pennsylvania Supreme Court |
Argued January 19, 1917
Appeal, No. 243, Jan. T., 1916, by plaintiffs, from judgment of C.P. No. 3, Philadelphia Co., Sept. T., 1915, No. 914 entering compulsory nonsuit in case of Paul Kuehne, Jr., by his Next Friend and Father, Paul Kuehne and Paul Kuehne, in his Own Right, v. George H. Brown. Reversed.
Trespass for personal injuries to five-year-old child. Before DAVIS J.
The facts appear by the opinion of the Supreme Court.
On the trial the court entered a compulsory nonsuit as to both plaintiffs, which it subsequently refused to take off. Plaintiffs appealed.
Error assigned, among others, was in refusing to take off the nonsuit.
The fourth assignment of error is sustained, the judgment is reversed, and the record remitted with a new venire.
W. Horace Hepburn, Jr., for appellant. -- The question whether defendant was guilty of negligence was for the jury: Bloom v. Whelan, 56 Pa.Super. 277; Drenberg v. Mahoning & Shenango Ry. & Light Co., 55 Pa.Super. 218; Tate v. Philadelphia Rapid Transit Co., 244 Pa. 74; Tarhayi v. Allegheny Valley Street Ry. Co., 243 Pa. 351; Myers v. Pittsburgh Rys. Co., 242 Pa. 502; Buck v. McKeesport, 227 Pa. 10; Boggs v. Pittsburgh, McKeesport & Greensburg Ry. Co., 216 Pa. 314; Carlin v. William Butler Co., 220 Pa. 194; Kohler v. Penna. R.R. Co., 135 Pa. 346; Lorah v. Rinehart, 243 Pa. 231. The distance an automobile travels after it strikes a pedestrian is evidence of negligence and evidence of speed: Michalsky v. Putney, 51 Pa.Super. 163.
Appellee submitted no paper book.
Before BROWN, C.J., MESTREZAT, POTTER, STEWART and FRAZER, JJ.
This is an action by a father and his minor child to recover for injuries to the latter sustained by reason of alleged negligence of defendant in operating his automobile. A nonsuit was entered by the court below as to both plaintiffs, and from this action they have appealed.
At the time of the accident, September 6, 1915, the plaintiff, Paul Kuehne, Jr., was five years of age. He and his father, the other plaintiff, were standing on the west side of Rising Sun Lane, near Comly street, in the City of Philadelphia, talking with friends.
This is a suburban section of the city, and Rising Sun Lane is about sixty feet in width, with trolley tracks on each side of the street, and a driveway for vehicles in the center; the driveway being of sufficient width to permit three vehicles to stand abreast. The street is without sidewalks, but at the place where plaintiffs were standing is a platform constructed of planks, and extending across the gutter to the car track. The father with his two children were standing on the platform referred to when one of the occupants of an automobile, occupied by the child's mother and others and standing on the opposite side of the street from the platform on which the boy and his father stood, called to the child, Paul, that there was room for him in the car. The boy immediately started to cross the street, and was about midway between the platform and the automobile when he was struck by defendant's car, coming south at a speed estimated by various witnesses at from eight or ten to forty miles an hour. There is no dispute, however, that the horn was not blown, or other warning given of its approach. Another car was standing on the same side of the street as the car in which Mrs. Kuehne was seated, one hundred feet down the road in the direction from which defendant's automobile approached, and, to pass this car, defendant was obliged to turn to the left side of the road. There were no obstructions in the street and nothing to prevent defendant from seeing the persons standing on the platform adjoining the railway tracks, or the boy on the street after leaving the platform. The distance from the platform to the point at which the child was injured was estimated, by the witnesses, at from twelve to twenty feet. Witnesses also testified that when the child started to cross the street defendant's automobile was in the neighborhood of seventy-five or a hundred feet away, and that the brakes were not applied to the car until within about five feet from the child, and that following the collision the automobile skidded on the gravel road for a distance of more than thirty feet.
The court below concluded the evidence of negligence on the part of defendant was insufficient to submit to the jury, so far as the rights of the minor were concerned, for the reason that the accident did not happen at a street crossing; that the evidence of defendant's failure to give warning of his approach was...
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