Layman v. Gearhart
Decision Date | 29 May 1957 |
Citation | 132 A.2d 228,389 Pa. 187 |
Parties | Roy LAYMAN, a Minor, by Gilbert Layman and Edith Layman, his Wife, Guardians of Said Minor, and Gilbert Layman and Edith Layman, His Wife, in Their Own Right, Appellants, v. George E. GEARHART. Appeal of Roy LAYMAN, a Minor. Appeal of Gilbert LAYMAN and Edith Layman. |
Court | Pennsylvania Supreme Court |
Anthony Cavalcante, Uniontown, for appellants.
Ray, Coldren & Buck, Jos. W. Ray, Jr., David E. Cohen, Uniontown, for appellee.
Before CHARLES ALVIN JONES, C. J., and BELL, CHIDSEY, MUSMANNO, ARNOLD, BENJAMIN R. JONES and COHEN, JJ.
These appeals are from the refusal of the court below to take off a nonsuit entered in a trespass action instituted for the recovery of damages for injuries sustained by a minor-pedestrian when struck by an automobile.
At approximately 2 o'clock in the afternoon of December 8, 1951--a clear day--appellee was driving his automobile in an easterly direction on a macadam state highway which runs generally from Connellsville to Melcroft in Fayette County, this state. As this highway passes through the hamlet of Clinton, it is intersected at right angles by another state highway. The intersection is marked with both directional and school zone signs. As the appellee approached this intersection from the west, the minor appellant, Roy Layman, aged 8 years, was observed by two witnesses walking across the grounds of a public school, which school is located on the southerly side of the Connellsville-Melcroft Highway and east of the intersection. They noticed that he was eating something which he held in his hand as he walked along. Just where on the school grounds the boy was walking was not depicted either with exactness or even approximation.
One of the appellants' witnesses testified she saw some children proceeding westerly on the northerly side of the Connellsville-Melcroft Highway east of the intersection, and that appellee's car was coming 'very fast' on the southerly side of said highway, west of the intersection. Another of appellants' witnesses testified that appellee's car was moving 'very rapidly'. Both of these witnesses testified that they heard the squeal of brakes after appellee's automobile had passed the cross road service station * * * located at the southwest corner of the intersection * * * where they were standing, that they saw the automobile running in the ditch on the southerly side of the highway, and that they saw appellee pull the minor child from beneath his car after it stopped with its two right wheels in the ditch and its two left wheels on the highway.
No eye-witness to the accident was called. Appellants sought to establish a prima facie case solely by the testimony of the two witnesses previously mentioned and two additional witnesses, who neither heard nor saw the accident. The appellee presented no evidence.
At the trial it was established that appellee's car had stopped 122 feet east of the intersection and that skid marks ran from the car backward to a point on the highway approximately 25 feet from the intersection.
After the presentation of the above evidence, appellants rested their case on the question of liability and the learned trial judge granted appellee's motion for a compulsory nonsuit on the ground that the evidence was insufficient to submit the question of appellee's liability to the jury. Appellants' motion to take off the nonsuit was denied by the court below and this appeal followed.
Our scope of review upon this type of appeal has often been enunciated by this court. In Szukics v. Ruch, 367 Pa. 646, 649, 81 A.2d 903, 905, we said: .' See also Finnin v. Neubert, 378 Pa. 40, 41, 42, 105 A.2d 77.
The principles of law applicable to this kind of case have frequently been enunciated by this court. In Ebersole v. Beistline, 368 Pa. 12, 16, 17, 82 A.2d 11, 12, former Chief Justice Horace Stern stated for this court: * * *'
Although the Ebersole case involved a collision between two vehicles--an automobile and a bicycle--the same principles are applicable in pedestrian-vehicle accident cases. Cf. Finnin v. Neubert, supra, a case quite similar on its facts and in the questions presented on the present appeal.
Reviewing the present record in the light of these authorities, it is clear that appellants' evidence--considered in the light most favorable to them--was so legally insufficient as to preclude its submission to the jury for a determination of appellee's responsibility for this accident. Appellants failed to establish a prima facie case by their failure to shed any light on the crucial issue of the case, i. e. the physical location of the minor child in relation to the highway at the time he was struck by appellee's automobile. There would be sound reason for sending this case to the jury if it had been shown that the boy was struck while alongside the road, or in the ditch, or even in the road itself if it were also proven that appellee, had he been reasonably...
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... ... --------------- ... 1 Among the cases citing this rule are: City Products Corp. v. Bennett Brothers, 390 Pa. 398, 135 A.2d 924; Layman v. Gearhart, 389 Pa. 187, 132 A.2d 228; Schofield v. King, 388 Pa. 132. 130 A.2d 93; Klimczak v. 7-Up Bottling Co. of Philadelphia, Inc., 385 Pa ... ...
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