Purdy v. Hazeltine

• Decision Date: 30 April 1936
• Docket Number: 83
• Citation: 321 Pa. 459,184 A. 660
• Parties: Purdy et al. v. Hazeltine, Appellant
• Court: Pennsylvania Supreme Court

184 A. 660

321 Pa. 459

Purdy et al. v. Hazeltine, Appellant

No. 83

Supreme Court of Pennsylvania

April 30, 1936

Argued April 6, 1936

Appeal, No. 83, March T., 1935, by defendant, from judgment of C.P. Washington Co., Feb. T., 1934, No. 259, in case of Ray W. Purdy, by his parents and next friends, Lawrence Purdy and Mabel Purdy, and Lawrence Purdy and Mabel Purdy, his wife, in their own right, v. J. F. Hazeltine. Judgment reversed and entered for defendant.

Trespass for personal injuries. Before GIBSON, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for minor plaintiff in sum of $5,000. Defendant appealed.

Error assigned, among others, was refusal of judgment n.o.v.

The judgment is reversed and is here entered for defendant.

Thomas F. Mount, with him George M. Brodhead, Jr., David I McAlister, of Hughes, McAlister & Zelt, and Joseph W Henderson, of Rawle & Henderson, for appellant.

William H. Eckert, with him Robert E. Burnside, of Burnside, Moninger & Burnside and Smith, Buchanan, Scott & Gordon, for appellees.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE LINN:

This suit is by parents in their own right and on behalf of their child for injuries to the child alleged to have resulted from contact with defendant's automobile in a street in Washington, Pennsylvania. The jury rendered verdicts in favor of the plaintiffs. The learned court below granted defendant's motion for judgment notwithstanding the verdict in the parents' case but refused the motion in the minor's case; defendant has appealed from the judgment for the minor.

The child, aged four years, was injured on Wylie Avenue between Allison and Jefferson Avenues, two streets, one square apart. The width of Wylie Avenue is not stated nor is the distance between the other two streets. After defendant's car had moved on Wylie Avenue from Allison to Jefferson, where it stopped to await a green light, the child was found lying in the cartway of Wylie Avenue, about halfway between Allison and Jefferson and three or four feet from the curb. At or near this point a private driveway leads to the right from Wylie Avenue. No witness called by the plaintiffs saw the child struck. ^[*] When defendant stopped at the Jefferson Avenue intersection he was informed by the driver of a truck that had followed him, that a child had been injured by his car. Plaintiffs contend that the evidence supports a finding that the child came in contact with the right side of defendant's car which had passed the point in question about four feet from the curb.

Defendant's car had entered Wylie Avenue by a right-turn from Allison Avenue, and was followed by a truck at a distance of ten feet. The driver of this truck and his helper testified in plaintiffs' behalf. They saw the child on the sidewalk; one of them says he saw it standing on the sidewalk at or near the curb; the other saw it running along the sidewalk. Defendant testified that he never saw the child.

Plaintiffs contend that it was the duty of defendant to see the child on the sidewalk and so to control the movement of his car as to avoid injuring the child if it should suddenly leave the sidewalk and enter the cartway. On the other hand, appellant contends that the record shows that he had no reason to look for or to expect the child in the cartway.

It is well settled that the measure of care to be exercised by a driver at or approaching a public crossing is greater than between intersections. "The degree of care required in operating a car between crossings is not as great as it is at a public crossing. The driver cannot, however, carelessly inflict injuries on users of highways between crossings. His duty is governed entirely by the circumstances of whether he saw such persons in the way in time to avoid hitting them, or whether he should anticipate their acts when they have committed themselves to a dangerous position . . . a driver is not bound to anticipate that a child will suddenly dart from the side of the street; but if at a designated place where there is anything to challenge his attention, and warn him that he should expect heedless acts, it becomes his duty to avoid, if possible, an accident . . . no responsibility may attach to the driver of the car, if, with the car under control, a child, while in the cartway, deliberately steps in front of it": Bowman v. Stouman, 292 Pa. 293, 297, 141 A. 41; Goldberg v. P.R.T., 299 Pa. 79, 149 A. 104. If the child was injured by defendant's car, the injury took place, not near a public crossing but about the middle of the square. It is also agreed that "To hold a driver of a car liable for a collision between crossings, the pedestrian must have been 'on the cartway a sufficient length of time to be seen, the driver of the car being far enough away to bring his machine under control'": McAvoy v. Kromer, 277 Pa. 196, 199, 120 A. 762; Gavin v. Bell Telephone Co., 87 Pa.Super. 276; McMillen v. Strathmann, 264 Pa. 13, 107 A. 332. This difference in the measure of care required of automobile drivers has received legislative recognition in the provisions of the Motor Vehicle Code regulating and restricting the rate of speed in passing public schools: Act of 1929, P.L. 905, section 1002, as amended by the Acts of 1931, P.L. 751, section 2, and 1935, P.L. 1056, section 29 (75 PS section 501); and see Glowaskie v. Rhoads, 312 Pa. 508, 166 A. 850; Quattrochi v. Pittsburgh Rys. Co., 309 Pa. 377, 164 A. 59.

The evidence (dealing with it in the light most favorable to plaintiffs) does not show that the minor was in the cartway in front of defendant's car. As the child was not in the cartway, the measure of care exercisable by defendant was less than if it had been there. The question then is how the matter is affected by the child's presence on the sidewalk. The evidence does not show exactly where the child was. The plaintiffs had the burden of proof. When the following truck turned into Wylie Avenue, the truck driver saw the child on the right-hand sidewalk "Just in about the middle of the block"; the child "wasn't exactly moving," he was "facing the other side of the street." When defendant's car passed that point, the witness said, he saw the minor "lying down," "lying on the street." He did not see how the child got into the street from ...