Turner v. Yourga
| Decision Date | 10 March 1958 |
| Docket Number | 94 |
| Citation | 15 Pa. D. & C.2d 762 |
| Parties | Turner v. Yourga |
| Court | Pennsylvania Commonwealth Court |
December term, 1956.
Motions for new trial and judgment n. o. v.
George Hardy Rowley, for plaintiffs.
Albert E. Acker, for defendants.
David W. Ketler, for additional defendants.
On January 19, 1956, at about 4:15 p.m., a school bus owned by O. D. Anderson and driven by Charles Coryea, additional defendants in this action, stopped on Pennsylvania State Highway No. 18, facing in a southerly direction approximately two miles south of the borough limits of the Borough of Greenville, immediately opposite the residence of plaintiffs in this action. At the time of the stopping of the school bus, a wet snow was falling and the roads were very slippery. Visibility, however, was sufficient to permit the bus driver, Charles Coryea, to have vision through his side view mirror to the north in the direction of Greenville to the first bend to the rear of the bus, a distance of 580 feet.
After the school bus came to a stop, the driver looked into his rear view mirror and noticed an automobile approaching from the rear. He then waited for the automobile from the rear to come up behind him and stop.
After several children alighted from the bus, plaintiff, James L. Turner, climbed dawn out of the bus onto the highway and stood next to the right front corner of the bus, awaiting instructions from the driver to cross the road. At this time, the driver had no windows open except a small side window, which was not sufficiently large or in a satisfactory position to give oral notice to the minor plaintiff as he crossed the road.
The driver testified that he checked the traffic, front and rear, and that there was nothing coming. He then signaled the minor plaintiff across the road. The minor plaintiff walked at a normal pace. When he arrived at the front left corner of the bus, the driver for the first time heard a horn. He glanced in his rear view mirror, turned around and glanced out of the side window and found that defendant's truck was right beside the bus. The additional defendant sounded his horn and tried to stop plaintiff from going on across, but the minor plaintiff had already advanced to the center of the northbound lane when he saw the truck about the same time and froze. The truck struck the boy and caused the damages complained of. The bus driver did not look back once plaintiff started across. The driver knew that he had a duty to get the child safely across the road. He appreciated that the minor plaintiff was but seven years of age. The driver did not know whether or not the minor plaintiff looked up or down the road before crossing into the southbound lane of traffic.
The driver and all of his passengers, which included the minor plaintiff, were informed by the driver that if at any time he honked his horn as they were crossing the highway, they were to return toward the bus. This was the rule, even though the child may have passed beyond the center line of the opposite lane of traffic.
The minor plaintiff was admitted to the Greenville Hospital following the accident where he was treated by Dr. Baker and Dr. Diehl, of Greenville. It was testified by Dr. Baker that he had recently examined the minor plaintiff prior to the trial and that the minor plaintiff was a normal boy in every respect and all of the tests given were negative with the possible exception of some slight pain caused by calcification about the head of the femur. The doctor further testified that there would be no disability whatsoever to the minor plaintiff and that, as far as the doctor could testify, the boy would in future years be able to carry on as any normal boy who had not been in such an accident. This would include his ability to do normal playing, going to school, getting a job and doing normal work.
Dr. Diehl who testified for plaintiff stated that he did not feel that there will be any future effects from the accident. He did state, however, that he should receive an examination about twice a year for three or four years to determine whether or not there would be any future effects from the accident. At the time of the trial, the doctor testified that as far as he knew, the minor plaintiff would be able to go through his future life and perform his services to the community and to himself as any normal individual.
A verdict was rendered in favor of the minor plaintiff in the amount of $ 2,500 and in favor of Lois Betty Turner and James Turner in the amount of $ 3,290.
The matter is now before the court on motions for a new trial and for judgment n. o. v.
Defendant Yourga contends that the court erred in refusing defendant's point of charge 6 which read:
" The bus driver, Charles Coryea was not exercising the highest practical degree of care under the circumstances if he relied on the fact that traffic approaching in either direction would stop."
In considering this matter it is important to note the exact language of the requested point. As requested, the point would have denied defendant Coryea the right to any reliance whatsoever on the rule of law requiring the approaching driver to stop when approaching the school bus. This becomes increasingly important when we consider that this approaching driver not only drove past the stopped school bus but also drove around a car which was properly stopped behind the bus. A parallel rule of law is that which concerns the reliance which may be put on a green light by a driver approaching an intersection. This rule, which has been suggested to and affirmed in this court recently, states:
" When one has the right of way by virtue of being on a through street or having a green light he must not be held to the exact degree of care that would have been required of him had there been no light or stop sign in his favor at the intersection" : Cericola v. Redmond, 182 Pa.Super 19, 23.
It is simply not the law that a driver is not permitted to rely to any degree on the fact that traffic approaching in either direction would stop in accordance with the law.
In addition, it is reversible error to refuse a party's requested instruction only when the instruction is a correct statement of the law, material to the issue, warranted by the evidence and not covered by the general charge.
" The refusal to give a point or charge is not error, even though such point or charge states a correct rule of law, if it has no specific application to the precise issue which is being tried" : 9 Standard Pa. Practice 429.
There is no evidence in this case that the bus driver relied on the fact that traffic coming from either direction would stop. The driver testified repeatedly that before opening the door he checked to see if there was any traffic and saw that traffic had stopped to the rear, and that before sending the Turner boy across the road he checked again, front and rear, and nothing was coming. Therefore, he kept his eyes on the boy to see that he did not slip on the pavement which was icy.
Nor is there any evidence that the bus driver knew or, as a reasonable man, should have known that a truck was approaching from the rear. On the contrary, the evidence is that he looked to the rear before motioning the boy across that he could see to the rear, a distance of from 450 to 580 feet, and that nothing was coming. Thereafter he kept his eyes on the boy, believing that the greatest danger was from the possibility of his falling on the road. It was for the jury to...
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