Silberstein v. Showell, Fryer & Co.

• Decision Date: 22 March 1920
• Docket Number: 55
• Citation: 109 A. 701,267 Pa. 298
• Parties: Silberstein et al., Appellants, v. Showell, Fryer & Co. (No. 1)
• Court: Pennsylvania Supreme Court

109 A. 701

267 Pa. 298

Silberstein et al., Appellants, v. Showell, Fryer & Co. (No. 1)

No. 55

Supreme Court of Pennsylvania

March 22, 1920

Argued January 8, 1920

Appeal, No. 55, Jan. T., 1920, by plaintiff, Adolph Silberstein, from judgment of C.P. No. 4, Phila. Co., Dec T., 1917, No. 1807, on verdict for defendant, in case of Matilda Silberstein, by her father and next friend, Adolph Silberstein, and Adolph Silberstein, in his own right, v Showell, Fryer & Co., Inc. Reversed.

Trespass to recover damages for injuries to a child between three and four years of age. Before FINLETTER, J.

The opinion of the Supreme Court states the circumstances of the accident.

Verdict and judgment for defendant. Matilda Silberstein, appealed.

Errors assigned were various instructions set forth in the opinion of the Supreme Court.

The judgment of the court below is reversed and a venire facias de novo awarded.

John J. McDevitt, Jr., with him Harry A. Gorson, for appellants. -- Under the authorities, if this child was a sufficient distance from the automobile and in a position of peril, it was the duty of the chauffeur to stop, although on three different occasions the learned trial judge distinctly charged that the chauffeur was not required to stop: Ely v. Pittsburgh, C. & C.R.R., 158 Pa. 233; Husvar v. D., L. & W.R.R., 232 Pa. 278; Sikorski v. P. & R. Ry., 260 Pa. 250; Castor v. Schaefer, 224 Pa. 208; Anderson v. Wood, 264 Pa. 98; Healey v. Shedaker, 264 Pa. 512; McMillin v. Strathmann, 264 Pa. 13; Yeager v. Gately & Fitzgerald, 262 Pa. 467; Kuehne v. Brown, 257 Pa. 37; Banks v. Shoemaker, 260 Pa. 280; Kerk v. Peters, 261 Pa. 279; Reichle v. Phila. Rapid Transit Co., 241 Pa. 1; Satinsky v. Mutual Brewing Co., 187 Pa. 57; Walbridge v. Schuylkill Electric Ry. Co., 190 Pa. 274; Slavin v. Northern Cambria St. Ry., 47 Pa.Super. 454; Bloom v. Whelan, 56 Pa.Super. 277; Lorah v. Rinehart, 243 Pa. 231; Blakley v. Pittsburgh Rys., 243 Pa. 250.

Edward M. Biddle, with him Robert T. McCracken, for appellee, cited: Stahl v. Sollenberger, 246 Pa. 525; McMillen v. Strathmann, 264 Pa. 13.

Before MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE KEPHART:

The plaintiff, a little girl between the age of three and four, was with her grandmother, in front of or near her home, on the west side of 17th street. Her home is located on the southwest corner of this and Latona street, Philadelphia. She left her grandmother and started to cross 17th street, at the public crossing, to the place where some children were playing on the sidewalk and roadway on the eastern side of the street. Latona street does not make a perfect intersection with 17th street, the former street on the eastern side being some distance south of this same street on the western side, the offset or difference in the southern line on the eastern and western sides of 17th street being 14 1/2 feet. Appellee's Ford truck approached the northern crossing of Latona street from the north, running directly south, a little west of the centre of 17th street, astride the west rail of the single-track street-car line. Defendant's witness, Marie Mosely, says the automobile was about half a yard below Latona street when the child darted across the street; another witness for defendant, Sara Savitzky, states that the child was in the center of the tracks when she first observed it, and (corroborating Marie Mosely) the automobile was then at the north houseline of Latona street. When the child was in, or coming close to, the centre of the street, the automobile was about 50 feet from her, or the width of the street plus the off-set, 14 1/2 feet, and the jury might well have so found. The driver of the car saw her at the first rail, on the western side. The accident occurred in the evening, the street was well lighted, and no obstacles obscured the vision of the driver. In attempting to pass the little girl, he deflected his car to her rear, blowing his horn as a warning; this noise caused the child to turn back towards her home and then, evidently frightened, forward again to where the children were playing. Her acts confused the driver; when she made the last turn to go over to the children, the driver turned his car in that direction; the fender struck her, knocking her down, the car passing over her body, inflicting serious injury. Appellee in its paper-book states: She sustained a fracture of the frontal bone and of the left arm, together with general contusions, and her right eye was affected, leaving her with a squint, or crossing, of that organ. The car did not stop until it ran on the sidewalk, striking and bending an awning pole.

The court below submitted the case to the jury, but on an erroneous theory of the law, steadfastly adhered to throughout the charge. A verdict was found for defendant -- it could scarcely have been otherwise under the charge -- upon which judgment was entered and this appeal taken.

The court below summed up the entire controversy in stating in its charge: "Coming down to the other question, which really is the important one, did this man have an opportunity to observe the child and to avoid this accident? That is the real important question in this case." Here was predicated a clear duty, elsewhere discussed. Whether it was performed was for the jury under proper instructions. Had the court adhered to it, no complaint could have been made; but instead of charging as the statement suggests, the case was treated along different lines.

When the plaintiff's case closed, there was scarcely any evidence of negligence to submit to the jury, excepting Dunn's testimony; but, eliminating this evidence, the missing circumstances of the accident, tending to establish negligence, were supplied by the defendant's evidence. It presented a case for the jury. The court below, however, in submitting the case, based appellant's right to recover solely on the strength of Dunn's testimony. A party is entitled to the benefit of all the affirmative facts helpful to his case, notwithstanding they may be adduced by his opponent's testimony. "The prime object of a trial where the facts are disputed is to elicit the truth; that is what the jury is to seek after and find if they can upon a consideration of all the evidence submitted to them": Husvar v. Del., L. & W.R.R. Co., 232 Pa. 278, 281. The learned judge dismissed appellant's testimony, with the exception of Dunn's, as follows: "[The witnesses] do not say the automobile was so far away that the driver could have had any chance whatever to avoid the child."

Dunn testified the car shot suddenly out of Latona street to 17th street, and the court held a greater measure of care should be exercised because of the sudden turning on 17th street out of Latona. Without considering the testimony of defendant's witnesses, Mosely and Savitzky, the court charged: "I am free to say to you that if it were not for the testimony of Mr. Dunn, the first witness called, I would have directed a verdict in favor of the defendant in this case, on the testimony of the plaintiff alone. . . . He [Dunn] saw this automobile moving in an eastern direction . which would have taken it out Latona street. . . . But he is the only witness in this case who says the machine came out of Latona street, and if that were not in the case. . . . I am quite free to say to you . . . that the case [as] made . . . [out by] the plaintiff, would be that of a child darting suddenly out of the street in the path of the southgoing automobile." The court had already charged the jury: "Of course if when the driver was coming down the street he saw the child going across he did not have to stop, to avoid her, there was no negligence in not stopping, his duty was not to stop, but his duty was to avoid hitting her. Therefore, when he saw her run west, or about in the middle of the street, he had a right to deflect his machine to pass behind where she was. . . . But if the little child suddenly then changed her mind and ran back in front of the automobile again, and again the automobile was turned, it was not by his negligence that the accident resulted. I mean that is true if she did that suddenly when she was close to the machine." Under the facts as developed, this part of the charge was erroneous. We have frequently announced the rule of law with respect to automobiles at public crossings. "Vehicles have the right of way on the portion of the highway set aside for them, but at crossings all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that, on...