Staszak v. Seibel

165 A.2d 1, 401 Pa. 494, 1960 Pa. LEXIS 550

• Court: Supreme Court of Pennsylvania
• Decided: November 15, 1960
• Docket: Appeals, 255 and 256
• Status: Published

Opinions

Opinion by

Mb. Justice Boic,

The jury returned a verdict for defendant and plaintiff moved for a new trial, which the court below refused. Judgment was entered on the verdict and the plaintiff appealed.

Five boys were walking north, down hill, on Whitaker Way, in Allegheny County, going for recreation to a boy’s club. The accident happened near an S-curve in the road, and the jury was faced with two versions: one, that the boy was hit while walking on the curbstone by the fender of the car sweeping across it, and the other, that the boy moved off the curbstone into the side of the car.

Plaintiff, then twelve and a half years old, was admittedly walking on the curb against traffic, with his left arm on the shoulder of a companion who was walking to his left on a path where ashes were dumped in lieu of a solid sidewalk. The other boys were strung out ahead and did not see the accident. Plaintiff said explicitly that he remained on the curb, which was 7% inches wide and 8 inches high and did not step from it into the street. The two-lane road was 38 feet 6 inches wide. The boy on whom plaintiff was leaning testified that the wheels of the car did not mount the curb but that the fender swept over it, picked plaintiff up, and after carrying him two car lengths let him fall in the street. One of the boys said that he saw the car a little close to him and by instinct stepped from the curb into the ash path. The accident happened on April 9, at about seven o’clock in the evening when it was dark, and oncoming cars, including the defendant’s, had their headlights on.

This version was rejected by the jury, which chose to believe the defendant.

Defendant testified that he saw the group of boys when he was fifty to sixty feet from them. He was going steeply uphill at 25 to 30 miles per hour. He said: “As I went by the boy [plaintiff] there was an awful thud. I heard the thud and I stopped the car.” He then got out, seeing nothing in front of his car, and found the plaintiff to the rear. When he asked the boy what had happened, he said: “I pulled away from my friend.” 1-Iis headlights were alight and he was driving two to three feet from the curb as he passed the boys, and he said that he was alert to the possibility of coming too close to the curb. He specifically denied that his bumper hit the boy and said that: “it did not happen that way.” The implication is obvious that plaintiff stepped off the curb into the side of the car.

Since there was evidence to support both versions, it is not our province to upset the jury’s choice. There is nothing weightier than this, despite counsel’s argument that defendant’s negligence was wanton and that the jury must have been confused, prejudiced, or biased. We feel that there was no such thing in the case and nothing beyond the usual issue of credibility over factors involving ordinary negligence.

Plaintiff suggests one trial error, that the trial judge failed to specify the doctrine of contributory negligence as it applies to a boy twelve and a half years old. No objection was made to the charge on contributory negligence generally and counsel, though invited, had no objections or corrections to offer at the end.

We feel that the element whose lack is now asserted is adequately covered in the charge and in the testimony. The plaintiff appeared and testified, and his age was known to the jury. He said: “Most of the time I would walk on the curb because I have a habit of walking on the curb. . . . And I knew the danger of traffic.” In his charge the trial judge said this, speaking of the defendant: “He claims that it was what we call a ‘darting out’, the hoy must have darted out. . . .

“If a person suddenly darts out from a highway, except as to [especially?] children, the law is if you see children playing on a sidewalk at any particular point, then a driver of a motor vehicle . . . has to observe a degree of care taking into account the fact that children are likely to step out or dart out heedlessly into their path.”

We think that this adequately suggests the basic difference between the conduct of a child and that of an adult. Had counsel wanted greater refinement he could have asked for it: see James v. Ferguson, 401 Pa. 92 (1960), 162 A. 2d 690. If, under the guise of fundamental error, we grant new process because a better formula could conceivably be found for legal conceptions, there would be no end to litigation.

We see no clear error of hnv or palpable abuse by the court below of its discretion: Super v. West Penn Power Co., 392 Pa. 159 (1958), 140 A. 2d 20.

The judgment is affirmed.