Tusko v. Lynett

• Decision Date: 27 May 1937
• Docket Number: 150
• Citation: 192 A. 410,326 Pa. 449
• Parties: Tusko et ux. v. Lynett et al., Appellants
• Court: Pennsylvania Supreme Court

192 A. 410

326 Pa. 449

Tusko et ux. v. Lynett et al., Appellants

No. 150

Supreme Court of Pennsylvania

May 27, 1937

Argued April 20, 1937

Appeal, No. 150, Jan. T., 1937, from judgment of C.P Lackawanna Co., Mar. T., 1936, No. 657, in case of Andrew Tusko et ux. v. Edward J. Lynett et al., trading as The Scranton Times. Judgment reversed and entered for defendants.

Trespass for wrongful death. Before SWOYER, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff in sum of $5,500, remitted to $3,500, and judgment entered thereon. Defendants appealed.

Error assigned was refusal of judgment n.o.v.

Judgment reversed and here entered for defendants.

Frank M. Walsh, for appellants.

James G. McDonough, with him Clarence J. Wing, for appellees.

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

OPINION

MR. JUSTICE STERN:

The legally significant facts in this case -- selecting from the testimony those most favorable to plaintiffs -- may be summarized as follows: Defendants' truck, manned by a driver and helper, delivered bundles of newspapers daily to various places in the vicinity of Scranton. A newsboy named Tatko operated his own independent delivery route in the village of Richmondale, and it was his custom each day to obtain his papers from defendants' truck when the latter arrived at Richmondale Road. Joseph Tusko, a fourteen-year-old schoolboy, became a partner of Tatko, who had gone off to a CCC camp, and deliveries were thereafter made to him. The arrangement was, when the truck came to Richmondale Road, for the driver to sound the horn as a signal announcing the truck's arrival. If Tusko was not in school at the time, he would come to receive his bundle; otherwise the papers were to be left by the helper on the porch of a mine engine house near by, where Tusko would later call for them. On October 29, 1935, the day before the happening of the accident which is the subject of the present suit, Joseph's brother Thomas, aged eight, went for the papers in the absence of Joseph, who later reprimanded Thomas sharply and told him not to do this again. On the following day -- that of the accident -- Joseph told Thomas "to be sure he does not go down today for the papers, like he went the day before; and he said he wouldn't go down."

On October 30 the truck, as usual, came north on the highway to Richmondale Road and the driver sounded the horn. Joseph happened to be attending an entertainment in his school. Thomas Tusko and another little boy were playing together about 200 or more feet away across a small creek. When the horn sounded Thomas and his companion came running across the creek and the westerly side of the highway to the truck, which had come to a stop on the easterly half of the 16-foot road, its left wheels close to the center. Thomas clambered into the rear of the truck and, with the consent of the helper, took the bundle of papers intended for his brother. He then started back across the roadway but as he emerged from behind the truck was struck and killed by another truck coming south on the highway at a fast rate of speed. During all this time defendants' truck remained stationary, with the driver and helper seated in the cab.

The present action is by Thomas Tusko's parents to recover damages for his death. The trial resulted in a verdict in their favor of $5,000, reduced by the court to $3,500. Defendants' motion for judgment n.o.v. was overruled, from which ruling this appeal was taken.

The theory of plaintiffs' case is that the crew of defendants' truck were negligent in inviting or luring Thomas into a place of peril, and, more especially, in not protecting him after he came to the truck and was allowed or directed to take the bundle of papers for delivery to his brother. In our opinion it is...