Wetherill v. Showell, Fryer & Co., Inc.

• Decision Date: 21 April 1919
• Docket Number: 73
• Citation: 107 A. 808,264 Pa. 449
• Parties: Wetherill et al., Appellants, v. Showell, Fryer & Co., Inc
• Court: Pennsylvania Supreme Court

107 A. 808

264 Pa. 449

Wetherill et al., Appellants, v. Showell, Fryer & Co., Inc

No. 73

Supreme Court of Pennsylvania

April 21, 1919

Argued March 26, 1919

Appeal, No. 73, Jan. T., 1919, by plaintiffs, from judgment of C.P. No. 1, Philadelphia Co., Dec. T., 1916, No. 3790, on verdict for defendant in case of R. Wayne Wetherill and Mary R. Wetherill, his wife, v. Showell, Fryer & Co., Inc. Affirmed.

Trespass to recover damages for personal injuries. Before PATTERSON J.

At the trial the court gave binding instructions for defendant saying, "I feel constrained to do so in view of the ruling of the Supreme Court in the case of Eastburn v. United States Express Co., 225 Pa. 33."

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned was in giving binding instructions for defendant.

The judgment is affirmed.

Leon J Obermayer, with him Mason & Edmonds, for appellants. -- The case was for the jury: Mulhern v. Philadelphia Homemade Bread Co., 257 Pa. 22; Tatarewicz v. United Traction Company, 220 Pa. 560; Jones v. United Traction Company, 201 Pa. 344; Castor v. Schaefer, 224 Pa. 208; Yoder v. Bosworth, 63 Pa.Super. 480; Schmidt v. McGill, 120 Pa. 405; Streitfeld v. Shoemaker, 185 Pa. 265; Ellison v. Atlantic Refining Co., 62 Pa.Super. 370; Meyers v. Pittsburgh Rys. Co., 242 Pa. 502.

Morris & Kirby, for appellee. -- Ample precedent sustains the entry of judgment by the court below: Eastburn v. U.S. Express Co., 225 Pa. 33; Stahl v. Sollenberger, 246 Pa. 525; Organ v. McCleman, 245 Pa. 264; Hoff v. Baking Co., 70 Pa.Super. 235.

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

OPINION

MR. JUSTICE SIMPSON:

Plaintiffs, as the parents of Howard W. Wetherill, sued to recover damages for his death caused by his having been run over by an automobile truck belonging to defendant. The allegations of negligence in the statement of claim are "the said automobile was being driven at a high and reckless rate of speed, . . . the said driver thereof failed to give due and sufficient notice of his approach . . . and was otherwise neglecting and disregarding the duty" he owed to the boy. The court below gave binding instructions for defendant, judgment was entered upon the verdict thus directed, and plaintiffs appealed. As the boy was but eight years old, he was not guilty of contributory negligence, and the only question to be considered is the alleged negligence of defendant.

But one person saw the accident, which occurred about 1 p.m. on February 4, 1916, at the N.W. Cor. of Green and Carpenter streets in the City of Philadelphia, and he and the father of the boy were the only witnesses who testified at the trial. Assuming, as we must, that all the facts testified to are true, we find them to be as follows: The cartway of Green street is 24 to 28 feet wide, and of Carpenter street 30 feet wide; and the footway on each side of each street is from six to eight feet wide. At the place of the accident Green street is on a sharp grade from north to south, and Carpenter street is on a slight grade from west to east. Just before the accident there had been a light snow, which had partially melted and then frozen. When the witness first saw the parties, the boy was coasting his sled on the west pavement of Green street, approaching Carpenter street, and was about ten feet north of the latter; and defendant's automobile was on Carpenter street, about thirty feet west of Green street, traveling eastwardly, its left wheels being "about five feet from the curb." The sled was not traveling very fast, but how fast is not stated, and the automobile was traveling at a "moderate rate of speed," which is defined as being "about thirteen or fourteen miles an hour." The speed of the sled evidently increased thereafter, due to the fact that it was going down a steep incline, for although the automobile continued at the same rate of speed, and the sled reached the house line of Carpenter street about the same time the front wheel of the automobile was opposite the house line of Green street, yet the sled crossed the six or eight feet of the Carpenter street footway, and the five feet from the curb to the automobile, while the latter, which was "about fourteen feet long" was traveling the distance between its front and rear wheels. At the corner where the collision took place there was a school building around which was a wall and a terrace above it, so that neither the driver of the automobile nor the boy on the sled could see the other until they respectively reached the house lines of the two streets. When the sled reached the corner, the front wheels of the automobile had reached it and all in front of them had passed it, and the boy seeing the danger tried to turn his sled so that he could pass to the rear, but not being able to do so ran straight across the intervening space into the left rear wheel. After the accident, and apparently without knowing it had occurred, the automobile continued at the same rate of speed eastwardly on Carpenter street, and passed out of...