Appeals, Nos. 52 and 53, Jan. T., 1950, from judgments of Court of Common Pleas No. 4 of Philadelphia County, June T., 1948, no. 2126, in case of Horace L. Hankins, Admr., Estate of Lawrence H. Hankins, also known as Horace Lawrence Hankins, a minor, deceased, et al. v. Robert E. Mack, trading as Mack Transportation Co. Judgment for estate reduced to $15,000, and affirmed; judgment for parents affirmed.
Paul H. Ferguson, with him G. Mason Owlett, for appellant.
Thomas Z. Minehart, with him Maurice A. Bank, for appellees.
Before Maxey, C.j., Drew, Linn, Stern, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE LINN
Defendant appeals in an action for damages for the minor decedent's estate under the Survival Act of 1937*fn1 and for damages for parents under the wrongful death statutes.*fn2 The claims were combined in one action pursuant to Pa. R.C.P. 2202. The verdicts were $30,000 for decedent's estate and $450 for the parents. A remittitur was filed reducing the former to $20,000. Judgments were entered accordingly.
The appellant contends that there is no evidence of negligence, that the minor was guilty of contributory negligence, that if recovery is sustained, the verdict was not sufficiently reduced by the court below. We apply the settled rule and take the oral evidence in its aspect most favorable to the verdict and reject all reject all inconsistent
inferences: Sorrentino v. Graziano, 341 Pa. 113, 17 A.2d 373 (1941).
About noon-time, May 26, 1948, a bright, clear, dry day, Lawrence Hankins aged nine years, three months, riding a bicycle southward on Lafayette Avenue, in the borough of Collingdale, was run down and killed by defendant's truck, traveling in the same direction. This avenue was thirty-one feet wide and was paved with macadam. Defendant's truck driver was familiar with the locality and knew that Lafayette Avenue for the entire square, from Bartram Avenue on the north to MacDade Boulevard on the south, was the western boundary of an area containing St. Joseph's Parochial School. The front of the school opened on Woodlawn Avenue, a street parallel to Lafayette Avenue. About midway between the north and south boundaries of this area, a private road, twelve feet wide, led from the school ground to Lafayette Avenue. As this road intersected the avenue from the east it was on the driver's left side as the truck traveled south. The minor came out on this road, traveled across the sidewalk about 11 feet wide, entered Lafayette Avenue, crossed the eastern half or northbound traffic lane of the avenue and turned southward into what was the right or southbound traffic lane. There was some evidence that he crossed the eastern half of the avenue on a southward diagonal line, but it was for the jury to find the fact. After having proceeded a distance of about 30 feet south of the road from which he entered Lafayette Avenue, he was run over by the right wheels of defendant's truck then following him. The Truck driver testified that he did not see the boy until the moment of impact. There was no other traffic to interfere with a careful truck driver's view of the minor. He could not, however, have been him until the boy emerged from the road and reached the sidewalk because on the right side of the road was
a hedge which obscured the boy until he was on the sidewalk. Immediately after the accident and before moving the truck, its foot brake was found to be defective. While the driver testified that before the accident "the brakes were in very good shape," the fact was to be found by the jury. In Johnston v. Cheyney, 297 Pa. 199, 203, 146 A. 551 (1929) we said: "Proof that the brakes failed to operate properly immediately following the accident was relevant on this question," i.e., whether the brakes were in proper condition. See also Delair v. McAdoo, 324 Pa. 392, 188 A. 181 (1936). The driver had come on Lafayette Avenue from Bartram Avenue on the north and in traveling southward crossed the center line of Lafayette Avenue to pass around ...