Schweinberg v. Irwin
| Decision Date | 15 November 1954 |
| Citation | 379 Pa. 360,109 A.2d 181 |
| Parties | Paul SCHWEINBERG, Sr., Administrator of the Estate of William Schweinberg, Deceased, and Pearl Schweinberg, Sr., and Gertrude Schweinberg, v. John Franklin IRWIN, Appellant. Robert KANE, a Minor, by his Guardian, Agnes R. Kane, and Agnes R. Kane in her own right, v. John Franklin IRWIN, Appellant. |
| Court | Pennsylvania Supreme Court |
Carl W. Brueck, Pittsburgh, for appellant.
David S. Palkovitz, Robert Palkovitz, and Jack Palkovitz, McKeesport, for appellees Schweinberg.
T. Robert Brennan, Brennan, Brennan, Damrau & Mohan, Pittsburgh, for appellees Kane.
Before STERN, C. J., and STEARNE, JONES, CHIDSEY, MUSMANNO, and ARNOLD, Jj.
March 31, 1951, was an ideal Spring day in Munhall, Pennsylvania. The skies were clear, the sun shone and children played on the streets. On McKinley Street, which runs east and west, a basketball game was being played with all the enthusiasm and freedom of a game unfolding in a gymnasium. Some 15 boys ran, leaped and pitched the ball at an improvised basketball hoop fastened to a telegraph pole. In the midst of their sport a Plymouth Sedan approached from the east. The boys halted the game, divided and moved to either side of the highway to let the motorist pass and then resumed their game.
The car continued along McKinley Street at a speed of from 10 to 15 miles per hour, proceeding westwardly toward Davis Avenue which intersects McKinley on a steep downgrade from the motorist's left. As the motorist, John Franklin Irwin, approached Davis Avenue he heard the noise of rapidly revolving wheels. The closer he got to Davis Avenue the faster the wheels seemed to spin and the louder noise they made.
Where Davis Avenue flows into McKinley it is bounded on its eastern side by a 3 feet-high wall surmounted by shrubbery. This landscaping screens Davis Avenue to the extent that anyone approaching Davis on McKinley from the east cannot see what may be moving on Davis until he is about one-fourth of the way through the intersection.
In no way reducing his speed or increasing his caution the driver of the Plymouth Sedan struck into the crossing, looking first to the right and then to the left. As he passed the two-thirds distance mark in the intersection the noise of the revolving wagon wheels exploded into a crash. Irwin threw on his brakes and brought his car to a stop 20 feet beyond the southern line of McKinley Street. Twenty-five feet to the rear of his car two small boys lay face downward in the street. Splinters and blood bespattered the surface of the highway and a smashed scooterwagon was lodged beneath the Plymouth Sedan. The boys were taken to the hospital. One, William Schweinberg, age 6, died soon after; the other, Robert Kane, age 7, still suffers from crippling injuries received in the collision.
Lawsuits followed and at the combined ensuing trial the jury returned a verdict for the defendant. The learned Trial Judge, with the concurrence of the two other judges who sat with her in the court en banc, ordered a new trial. The defendant has appealed.
We see no reason to disturb the action of the lower Court. The verdict, as the lower Court stated, was clearly against the weight of the evidence. On his own testimony the defendant convicted himself of conduct which clearly spelled negligence. He knew that he was travelling through a neighborhood where children played outdoors; he had travelled over McKinley Street many times; he heard the admonitory rattle of a speeding wagon; he was familiar with the layout of the connecting thoroughfares and their geographical pecularities; he was aware that the stone wall on Davis Avenue blindfolded his view as to what might be entering into the very lane of traffic he was about to traverse. In spite of these signs he did not slacken speed, he did not even first look to the left from which direction it was more likely the children's wagon was coming since the street sloped downward from the left. In Richardson v. Wilkes-Barre Transit Corporation, 172 Pa.Super. 636, 95 A.2d 365, 367, the Superior Court said:
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