Opinion
October 26, 1930.
January 30, 1931.
Negligence — Automobiles — Pedestrian — Child — Sudden appearance from behind obstruction — Personal injury — Proximate cause of death — Contributory negligence of parents — Judgment n.o.v.
In an action of trespass by parents to recover damages for the death of their minor child, the testimony established that the plaintiffs and their minor child were proceeding northwardly in their automobile on a country road and that they parked their car on the right side of the road with the right hand wheels to the right of the improved portion of the highway. The distance from the parked car to the top of a hill to the north was about 800 feet. The plaintiffs stopped to send the child across the road to a house. Both parents testified that they looked in both directions before the child started around the car and across the highway and that no other automobiles were then in sight. The defendant, who was the only eye-witness to the actual happening, stated that he was proceeding southwardly and that the child ran from behing the parked car into the left hand fender of his car as he was passing the plaintiff's automobile. The evidence was conflicting as to the speed of the defendant's, car but there was nothing to indicate that he had reason to anticipate the act of the child.
Held: (1) That the proximate cause of the death of the child was her sudden running from back of the parked car into the automobile of the defendant, without any reason on the part of the driver to anticipate the act of the child and without opportunity to stop after the child came in view; (2) that the parents were guilty of contributory negligence in that they failed in the performance of their duty to look before sending the child across the roadway when the defendant's car must have been in sight, and (3) that a judgment entered for the defendant non obstante veredicto will be affirmed.
If a child is not able to comprehend and appreciate danger then parents should exercise judgment and care and should look before sending the child into a roadway. The degree of protection required of parents is in proportion to the helplessness and indiscretion of the child.
Drivers of automobiles cannot be expected to anticipate the sudden appearance of a child from behind an automobile or some similar obstruction to view.
Appeal No., 82, October T., 1930, by plaintiffs from judgment of C.P., Lebanon County, June T., 1928, No. 244, in the case of Paul P. Rittle and Linda Rittle, his wife, v. A.P. Zeller.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM, BALDRIGE, and WHITMORE, JJ. Affirmed.
Trespass to recover for death of minor child. Before HENRY, P.J.
The facts are stated in the following opinion of the court below:
The plaintiffs are suing for damages for the death of their minor child, Bernice. The jury returned a verdict in their favor for $951.18. The defendant, having presented a point asking for binding instructions at the time of trial, now moves for judgment non obstante veredicto upon the whole record.
The child, Bernice, was 8 years and 8 months old, and was almost instantly killed by the automobile of the defendant in which he was riding, and which was driven by his son. The accident happened in the open country, on the improved highway between Kimmerling's and Mt. Zion, at a point near the bottom of a dip between two hills. The plaintiffs had been driving northwardly in the automobile in which their daughter, Bernice and another child were riding with them, and stopped near the bottom of a grade and opposite from what is known as Zimmerman's lane. The testimony for the plaintiffs indicated that they had parked their car on the right hand side of the road with the right hand wheels to the right of the improved portion of the highway. The accident happened about noon of a clear day and the distance from the parked car of the plaintiffs to the top of the grade to the north was about 800 feet and the distance from the parked automobile to the top of the hill to the south was about 600 feet. The purpose of the plaintiffs in stopping at this point was to send the child Bernice across the road to the Zimmerman farm house for milk. Both parents testified that they looked in both directions before the child started around the car and across the highway and no other automobiles were then in sight. The defendant's car was traveling southwardly on this highway and the child either stepped or ran in front of or into the left side of this automobile. According to the plaintiffs' testimony the defendant's car ran 80 feet after striking the girl. No signal was given by the driver of the defendant's car. The child's teeth marks were on the left fender close to the left hub cap and her body was thrown to the east side of the road. Neither of the plaintiffs saw the accident and neither of them saw the child after she passed around the rear end of their parked car until after the accident. The father of the girl testified that he first saw the defendant's automobile when it was alongside of him and that it passed him at a distance of about a foot from the parked car and the mother did not see the defendant's car until after the accident. The plaintiffs and a number of their witnesses testified that the defendant admitted that his car was running between 35 and 40 miles an hour, one of the witnesses said possibly 45 miles. These witnesses further testified that the defendant had admitted that he saw the mother of the child and the two children standing outside of the car along its east side and thought they had tire or engine trouble. Much of this evidence for the plaintiffs was disputed by the defendant but the question is whether the evidence considered from the most favorable viewpoint of the plaintiffs is sufficient to sustain the verdict.
The only evidence of the actual happening, and which is undisputed is that furnished by the defendant and which is in effect that the child ran from behind the parked automobile into the left hand fender of the defendant's car as it was passing the parked car of the plaintiffs. The mother testified that the child walked when she left her side but that was when the child started toward the rear of the parked car. The question is whether the proximate cause of the death of the child is her sudden running from back of the parked car into the automobile of the defendant, without any reason on the part of the driver to anticipate the act of the child and without opportunity to stop after the child came in view.
Our courts have repeatedly and consistently held that drivers of automobiles cannot be expected to anticipate the sudden appearance of a child from behind an automobile or some similar obstruction to view. Among other cases may be noted Gould v. Traction Company, 190 Pa. 199; McKee v. Harrisburg Traction Co., 211 Pa. 47; Kline v. Traction Co., 181 Pa. 276; Eastburn v. United States Express Co., 225 Pa. 33; Stubbs v. Edwards, 260 Pa. 75; McAvoy v. Kromer et al., 277 Pa. 196; Grein et al. v. Gordon, 280 Pa. 576; McAtee v. Highland Coffee Co., 291 Pa. 32; Crone v. Harrisburg Railway Co., 293 Pa. 428; Johnston et al. v. McDade et al., 88 Pa. Super. 377; Siglin et ux. v. Haiges, 95 Pa. Super. 588. These cases further lay down the principles that there can be no recovery in these cases even though the defendant may have been negligent and even though an express provision of a statute may have been violated.
The plaintiffs place reliance upon Mackovitch et ux. v. Becker, 93 Pa. Super. 514, and Parznik v. Central Abattoir Co., 284 Pa. 393. In the former case the driver's view was unobstructed for 4 squares. There was no traffic on the street, except a horse and wagon and the child was struck at a crossing of the city street when he reached a point a little beyond its centre. On the opposite sidewalk a number of children were playing. In Parznik v. Central Abattoir Co., the accident happened on an intersection of a street of the City of Reading at a place used by pedestrians for crossing. The child was struck at a point in the middle of the roadway and by the front of a truck. These cases do not involve the sudden running or darting of a child from back of some obstruction of view such as a parked automobile. On the contrary, the children were in plain view and should have been seen by the driver of an automobile in approaching the crossing place for pedestrians.
Under the authorities we think this is clearly a case in which the proximate cause of the death of the child is her sudden running from back of the parked car of her father into the side of the automobile of the defendant and that there is nothing in the evidence to indicate that the driver of the defendant's car had reason to anticipate the act of the child. For this reason alone the motion for judgment non obstante veredicto must prevail.
In addition to the question of proximate cause, we think the plaintiffs under this evidence are chargeable with contributory negligence which bars any recovery against the defendant. True, both the parents say they looked in both directions and saw no car approaching, but if this is true then they failed to look at the proper time to see whether the child would be endangered in crossing the highway. The view was unobstructed for 800 feet to the top of a hill in the direction from which the car of the defendant approached and at a speed of 40 miles per hour it would have required approximately 13 1/2 seconds to cover this distance. The father did not see the defendant's car and consequently he could not have looked while it was traversing this distance. The mother did not see the defendant's car until after the accident, so she could not have looked while it was traversing this distance. They should have looked before permitting the child to pass from the rear of the parked automobile to the roadway and looking should have seen the approaching car and seeing should have prevented the child from crossing in its path. Failing in this duty they are chargeable with a want of care as a result of which the accident happened. The child was of an age when she was not chargeable with contributory negligence unless she was able to comprehend and appreciate danger but the parents knew of the mental development of the child and whatever the child lacked in this respect should have been supplied by the parents under these circumstances. The degree of protection required of parents is in proportion to the helplessness and indiscretion of the child: Sullenberger v. Chester Traction Co., 33 Pa. Super. 12, 16; Safranski v. Seman, 40 Pa. Super. 219. The cases cited by the plaintiffs are those involving school children or bands of children playing upon sidewalks or in roadways, in plain view and with every reason to suggest to the driver of an automobile the likelihood of their running into the street and therefore imposing upon him the duty of bringing his car under control in passing the vicinity of such children. Cover v. Hershey Transit Co., 290 Pa. 551, was a case where children trespassed upon a bridge owned by the street railway company. It was there declared however at page 560 of the opinion that "suffering small children to engage in dangerous work or to go at large unprotected or to expose themselves to danger in the presence of the parents, must be declared negligence as matter of law, but the doubt, if any, should be resolved in favor of jury trial."
In the present case the child was chargeable with contributory negligence in stepping in the pathway of an automobile which should have been seen by looking, if she was of sufficient mental development to comprehend and appreciate the danger of the situation. If the child was not able to comprehend and appreciate the danger then the parents should have known this and they should have exercised the judgment and care which are necessary and that is to look before sending the child into the roadway and if they had looked they must have seen the approaching car of the defendant.
For both of these reasons, namely, that the proximate cause of the death of the child was her sudden coming from the back of the parked automobile into the roadway, without anything to indicate to the driver of the approaching car that she was about to do this and without sufficient time to stop, and that the plaintiffs themselves failed in the performance of their duty in looking before sending the child across the roadway when the defendant's car must have been in sight, the verdict of the jury cannot be permitted to stand.
And now, to wit, October 16, 1929, judgment non obstante veredicto upon the whole record is hereby entered in favor of the defendant. An exception to this action of the court is hereby noted for the plaintiffs.
Verdict for plaintiffs in the sum of $951.18. Subsequently on motion, judgment was entered for defendant non obstante veredicto. Plaintiffs appealed.
Error assigned was the entering of judgment non obstante veredicto.
Eugene D. Siegrist, for appellants.
Walter C. Graeff, and with him C.V. Henry, Jr., and Dawson W. Light, for appellee.
Argued October 26, 1930.
The questions raised in this case are thoroughly considered and discussed in the opinion of the learned President Judge of the court below; judgment appealed from is affirmed on that opinion.