Opinion by
Mb. Justice Bell,
The sole question in this case is whether defendant is entitled to a judgment non obstante veredicto.
Darel Eckley, 3 1/2 years old, was killed in a heartrending accident. At approximately 8:30 o’clock p.m., daylight saving time, on May 29, 1952, Mr. Eckley was driving his automobile on a concrete paved highway (18 feet wide) known as Route 209, in the Village of Brodheadsville, Monroe County, Pennsylvania. His wife was in the front seat of the four door sedan, Darel and his brother Dale, aged 8, were in the back ■seat of the car.
Eckley first saw defendant’s car when it was coming toward him about 200 to 250 feet away from him. Eckley estimated defendant was driving between 40 and 50 miles an hour and that he slowed down. There was a sign “35 mile speed limit”. Eckley’s car, going 25-30 miles an hour, traveled about 48 feet after he heard that Darel had fallen out. There were two cars in back of defendant and 2 or 3 in back of plaintiff.
Eckley further testified that defendant tried to straddle the boy and as he did so hit him with the bumper of his car and moved him about 15 feet. Defendant got down on his knees and pulled Darel by his legs out from under the car. Darel was under the front axle, but so far as any evidence showed, had not been run over at any time by defendant’s or any other car. Eckley testified that he found some blood on the defendant’s bumper guard and the reason he thought it was blood was that it looked red. On cross-examination Eckley admitted there was a steady flow of automobiles in both directions; that he never looked back at any time to see what position in his car his two boys were in; that the first time he knew about any danger was when his son Dale said “The door is open and Darel fell out”; that he did not continue to watch Darel but watched the traffic and put out his hand to flag the traffic; that he did not get out of his car because of approaching traffic, nor blow his horn, nor shout to defendant as defendant went by.
Eckley then made the following admissions: “Q. . . . Didn’t the Seese car after it had passed you at any time block your vision of Darel’s position on the highway? A. Well, after he had passed me; yes. After he had, there was a closing up. After he got out about 8 or 10 feet, I couldn’t see him. Q. After? A. After [428]*428he passed. Q. After Mr. Seese passed you? A. I would say, about 15 feet; yes. Q. You couldn’t see Dwel? A. I couldn’t sec Dwel. Q. And you never saw Mm again until you saw him under the front axle of the car; is that right? A. That is right.” *
Mrs. Eckley testified as follows: “Q. Now, as you were riding west, will you tell the Court and jury what happened? A. Well, we just started out a short distance when the other boy shouted ‘The door flew open. Darel fell out.’ Q. What did your husband do and what did you do then? A. Well, he stopped as quick as he could. I got out of the car and first ran up to the front of the car and then ran up to the back. My intention was to stop the car. Q. What happened to you when you first stepped out of the car? A. Well, I slipped on the curb first and it slowed me up. Q. On the curb? A. On the side of the car. I had crepe sole shoes on and that is what made me slide. Q. Was the car fully stopped when you got out of the car? A. It really hadn’t. Q. What happened? A. It throwed me down. I went down on my knee. I don’t know which one. ... A. I hollered, ‘Don’t run over him’. . . . Q. Would you know how far ahead it was when you first saw it? A. I would say, three car lengths. Q. In other words, you got out of your car, fell on your knee and got up, and when you saw this car it was about three cars in length ahead of you? A. Yes. . . . Q. And did the car pay any attention to you when you hollered? A. No. I don’t know whether he heard me or not. . . . Q. Did you go back to Mr. Seese’s car after it stopped? A. No; I didn’t. . . . Q. Did you see them take the child out from under the car? A. No; I didn’t. As I was coming up toward the car again, Mr. Seese came walking up. [429]*429He had him on his arm; on his shoulder like. Q. Where did he take him? A. He took him into: the driveway; into the [doctor’s] office. Q. And did you go along to the hospital with him? A. No; I didn’t.”
Dr. Martucei’s house was about 600 feet away and defendant and Eckley took the boy to his office and then immediately to the Stroudsburg General Hospital, where Dr. Jordan, who was the chief surgeon in charge of the hospital, was summoned, Dr. Jordan testified that the boy had a fracture of the left femur and had multiple irregularities about his head, some due to hemorrhage between the skull, the skin and the;, scalp, and some due to fractures of the bone, underneath. “. . . the whole skull was like a sponge . . . The whole skull was in many different pieces. ... he was in such severe shock.” The head and skull were crushed in many places. The child was unconscious until his death seven days later.
The doctor further testified that the cause of his death was “The head injury and laceration of his brain”; and that the lacerations to the brain were caused by “multiple fractures of his skull, by teaming the brain and actually causing cuts in the brain ...” The fractures were in the front and back and on top of his head. There was no external bleeding, according to the doctor, and the hospital records confirm him on this point. This was further confirmed by the testimony of the defendant and by the testimony of police officer Anthony Bensch, who arrived a few minutes after the accident and got down on his hands and knees and, with the aid of a flashlight, examined the bumper, the axle and other parts of defendant’s car, and found no blood of any kind and nothing to indicate the car struck the child. After officer Bensch completed his examination of the car and the under parts of the car and the ground, he said, “Mr. Eckley, are you sat[430]*430isfied this car didn’t strike jour child?”, and he nodded his agreement.*
This was the plaintiff’s case. It must be obvious to everyone that a little boy 3 1/2 years old, who fell out of an automobile which was going 25 to 30 miles an hour and landed on a concrete highway, would likely have exactly the injuries which Darel had.
Giving plaintiffs the benefit of all evidence favorable to them and assuming that defendant’s car struck Darel and that defendant was negligent, it is equally probable, if not more probable, that the multiple fractures of Darel’s head and brain were caused by his falling out of plaintiff’s automobile onto the concrete highway, instead of being caused by defendant’s bumper which would have likely caused a different kind of head injury.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mb. Justice Bell,
The sole question in this case is whether defendant is entitled to a judgment non obstante veredicto.
Darel Eckley, 3 1/2 years old, was killed in a heartrending accident. At approximately 8:30 o’clock p.m., daylight saving time, on May 29, 1952, Mr. Eckley was driving his automobile on a concrete paved highway (18 feet wide) known as Route 209, in the Village of Brodheadsville, Monroe County, Pennsylvania. His wife was in the front seat of the four door sedan, Darel and his brother Dale, aged 8, were in the back ■seat of the car.
Eckley first saw defendant’s car when it was coming toward him about 200 to 250 feet away from him. Eckley estimated defendant was driving between 40 and 50 miles an hour and that he slowed down. There was a sign “35 mile speed limit”. Eckley’s car, going 25-30 miles an hour, traveled about 48 feet after he heard that Darel had fallen out. There were two cars in back of defendant and 2 or 3 in back of plaintiff.
Eckley further testified that defendant tried to straddle the boy and as he did so hit him with the bumper of his car and moved him about 15 feet. Defendant got down on his knees and pulled Darel by his legs out from under the car. Darel was under the front axle, but so far as any evidence showed, had not been run over at any time by defendant’s or any other car. Eckley testified that he found some blood on the defendant’s bumper guard and the reason he thought it was blood was that it looked red. On cross-examination Eckley admitted there was a steady flow of automobiles in both directions; that he never looked back at any time to see what position in his car his two boys were in; that the first time he knew about any danger was when his son Dale said “The door is open and Darel fell out”; that he did not continue to watch Darel but watched the traffic and put out his hand to flag the traffic; that he did not get out of his car because of approaching traffic, nor blow his horn, nor shout to defendant as defendant went by.
Eckley then made the following admissions: “Q. . . . Didn’t the Seese car after it had passed you at any time block your vision of Darel’s position on the highway? A. Well, after he had passed me; yes. After he had, there was a closing up. After he got out about 8 or 10 feet, I couldn’t see him. Q. After? A. After [428]*428he passed. Q. After Mr. Seese passed you? A. I would say, about 15 feet; yes. Q. You couldn’t see Dwel? A. I couldn’t sec Dwel. Q. And you never saw Mm again until you saw him under the front axle of the car; is that right? A. That is right.” *
Mrs. Eckley testified as follows: “Q. Now, as you were riding west, will you tell the Court and jury what happened? A. Well, we just started out a short distance when the other boy shouted ‘The door flew open. Darel fell out.’ Q. What did your husband do and what did you do then? A. Well, he stopped as quick as he could. I got out of the car and first ran up to the front of the car and then ran up to the back. My intention was to stop the car. Q. What happened to you when you first stepped out of the car? A. Well, I slipped on the curb first and it slowed me up. Q. On the curb? A. On the side of the car. I had crepe sole shoes on and that is what made me slide. Q. Was the car fully stopped when you got out of the car? A. It really hadn’t. Q. What happened? A. It throwed me down. I went down on my knee. I don’t know which one. ... A. I hollered, ‘Don’t run over him’. . . . Q. Would you know how far ahead it was when you first saw it? A. I would say, three car lengths. Q. In other words, you got out of your car, fell on your knee and got up, and when you saw this car it was about three cars in length ahead of you? A. Yes. . . . Q. And did the car pay any attention to you when you hollered? A. No. I don’t know whether he heard me or not. . . . Q. Did you go back to Mr. Seese’s car after it stopped? A. No; I didn’t. . . . Q. Did you see them take the child out from under the car? A. No; I didn’t. As I was coming up toward the car again, Mr. Seese came walking up. [429]*429He had him on his arm; on his shoulder like. Q. Where did he take him? A. He took him into: the driveway; into the [doctor’s] office. Q. And did you go along to the hospital with him? A. No; I didn’t.”
Dr. Martucei’s house was about 600 feet away and defendant and Eckley took the boy to his office and then immediately to the Stroudsburg General Hospital, where Dr. Jordan, who was the chief surgeon in charge of the hospital, was summoned, Dr. Jordan testified that the boy had a fracture of the left femur and had multiple irregularities about his head, some due to hemorrhage between the skull, the skin and the;, scalp, and some due to fractures of the bone, underneath. “. . . the whole skull was like a sponge . . . The whole skull was in many different pieces. ... he was in such severe shock.” The head and skull were crushed in many places. The child was unconscious until his death seven days later.
The doctor further testified that the cause of his death was “The head injury and laceration of his brain”; and that the lacerations to the brain were caused by “multiple fractures of his skull, by teaming the brain and actually causing cuts in the brain ...” The fractures were in the front and back and on top of his head. There was no external bleeding, according to the doctor, and the hospital records confirm him on this point. This was further confirmed by the testimony of the defendant and by the testimony of police officer Anthony Bensch, who arrived a few minutes after the accident and got down on his hands and knees and, with the aid of a flashlight, examined the bumper, the axle and other parts of defendant’s car, and found no blood of any kind and nothing to indicate the car struck the child. After officer Bensch completed his examination of the car and the under parts of the car and the ground, he said, “Mr. Eckley, are you sat[430]*430isfied this car didn’t strike jour child?”, and he nodded his agreement.*
This was the plaintiff’s case. It must be obvious to everyone that a little boy 3 1/2 years old, who fell out of an automobile which was going 25 to 30 miles an hour and landed on a concrete highway, would likely have exactly the injuries which Darel had.
Giving plaintiffs the benefit of all evidence favorable to them and assuming that defendant’s car struck Darel and that defendant was negligent, it is equally probable, if not more probable, that the multiple fractures of Darel’s head and brain were caused by his falling out of plaintiff’s automobile onto the concrete highway, instead of being caused by defendant’s bumper which would have likely caused a different kind of head injury.
“ ‘Plaintiff must prove by a fair preponderance of the evidence that defendant was guilty of negligence and that defendant’s negligence was the proximate cause of the [injuries].’ ... ‘It is not enough to show merely that an accident occurred, [or that plaintiff was injured] or that it [the injuries] may have happened from any of several causes, equally probable, for only one of which the defendant would be responsible; a jury cannot be allowed to find a verdict on the basis of a mere guess or conjecture; . . : Karcesky v. Laria, 382 Pa. 227, 114 A. 2d 150.
[431]*431In the instant case Dar el’s injuries could with equal probability have been caused from falling out of his father’s automobile onto the concrete highway or from being struck by defendant’s automobile. There was no medical testimony produced to show that Darel’s injuries were the result of being struck by defendant’s automobile instead of the result of falling out of his father’s car and bouncing on the highway, and consequently a verdict of a jury would be a mere guess or conjecture. For this reason, judgment is entered in favor of Travis J. Seese non obstante veredicto.
It is unnecessary to decide whether this was such want of care as to constitute contributory negligence as a matter of law.