Mulhern v. Philadelphia Home-Made Bread Co.

• Decision Date: 05 March 1917
• Docket Number: 162,163
• Parties: Mulhern et al. v. Philadelphia Homemade Bread Company, Appellant
• Court: Pennsylvania Supreme Court

101 A. 74

257 Pa. 22

Mulhern et al. v. Philadelphia Homemade Bread Company, Appellant

Nos. 162, 163

Supreme Court of Pennsylvania

March 5, 1917

Argued January 12, 1917

Appeals, Nos. 162 and 163, Jan. T., 1916, by defendant, from judgment of C.P. No. 2, Philadelphia Co., June T., 1910, No 339, on verdicts for plaintiffs, in case of Anna Mulhern, by her father and next friend, William J. Mulhern, and the said William J. Mulhern, in his own right, v. The Philadelphia Homemade Bread Company. Affirmed.

Trespass to recover damages for personal injuries. Before BARRATT P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff, William J. Mulhern, for $200 and for Anna Mulhern for $2,000 and judgment thereon. Defendant appealed.

Errors assigned were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant n.o.v. and in refusing a new trial.

The judgment is affirmed.

William H. Peace, for appellant. -- The case should have been withdrawn from the jury as the accident was unavoidable: Chilton v. Central Traction Co., 152 Pa. 425; Funk et al. v. Electric Traction Co., 175 Pa. 559; Fleishman v. Neversink Mountain R.R. Co., 174 Pa. 510; Martin v. Ware, 212 Pa. 83; Leitzel v. Harrisburg Traction Co., 212 Pa. 608; Meloy v. Philadelphia Rapid Transit Co., 217 Pa. 189; Kochesperger v. Philadelphia Rapid Transit Co., 217 Pa. 320.

John Martin Doyle, with him Eugene Raymond, for appellees. -- The case was properly submitted to the jury: Tatarewicz v. United Traction Co., 220 Pa. 560; Jones v. United Traction Co. (No. 1), 201 Pa. 344; Kroesen v. New Castle Electric St. Ry. Co., 198 Pa. 26.

Before MESTREZAT, POTTER, STEWART, MOSCHZISKER and FRAZER, JJ.

OPINION

MR. JUSTICE POTTER:

These appeals are grounded upon the refusal of the court below to give binding instructions in favor of the defendant, or to enter judgment non obstante veredicto. It appears from the testimony that about noon on February 4, 1909, some school children just released from school, were walking and sliding upon the icy sidewalk on the south side of Tasker street near Eighteenth. Anna Mulhern, a child some ten years of age, fell or was pushed over the curb into the edge of the driveway of the street as a wagon driven by an employee of defendant was approaching, the right hand wheels running near the curb. The horse was turned somewhat aside, but the front wheel of the wagon ran over the little girl's leg and broke it. The question for determination was whether the driver, by the exercise of proper care, should have seen the child, after it fell and was lying partly in the street ahead of him, in time to stop his wagon, or turn it aside to avoid the accident.

A bystander testified that he saw the child lying partly in the gutter when the wagon was some thirty feet distant, and he said that the driver was not then looking ahead but was at the moment looking backward into the body of his wagon. The jury may well have found that the proximity of a number of children upon the sidewalk at the side of the street upon which he was driving, and the well known tendency of children to make sudden and heedless dashes, should have put the driver upon his guard at that particular place, at least to the extent of keeping his horse well in hand. ...