Appeals, Nos. 93, 96, 147 and 148, March T., 1950, from decree of Court of Common Pleas of Cambria County, Dec. T., 1947, No. 157, in case of Richard A. Chapple et al. v. Raymond L. Sellers. Order affirmed.
John M. Bennett, with him Morgan V. Jones and Weimer, Bennett & Jones, for plaintiffs.
Russell R. Yost, with him Graham, Yost, Meyers & Graham, for defendant.
Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
These are appeals by a minor plaintiff and his parents from the grant of a new trial, the sole reason given by the court below being that it has committed an error of law in its charge.
We have frequently repeated the rule regarding a reversal of the award of a new trial. A recent pronouncement is Held, Admrx., v. Van Tiggelen et al., 364 Pa. 317, 72 A.2d 73, where Mr. Justice JONES said, p. 318: "The burden assumed by the appellant in seeking a reversal of the order granting a new trial is indeed a very heavy one. The controlling principle has long been settled and has often been reiterated. One of the more recent utterances is contained in Marko v. Mendelowski, 313 Pa. 46, 47, 169 A. 99, later quoted with
approval in Girard Trust Company v. George V. Cresson Company, 333 Pa. 418, 422, 5 A.2d 221, and again in Tupponce v. Pennsylvania Railroad Company, 358 Pa. 589, 590, 57 A.2d 898, where we said, -- 'we will not reverse an order awarding a new trial unless a palpable abuse of discretion on the part of the trial judge is disclosed or unless an erroneous rule of law, which in the circumstances necessarily controls the outcome of the case, if certified by the trial judge as the sole reason for his action.'"
The scope of the present review, therefore, is whether the trial judge did commit an error of law in his charge.
The facts are as follows: On the morning of October 27, 1945, minor plaintiff, a child of eight years of age, was playing on the sidewalk with several other children, at the corner of Rose Street and Edson Avenue, in Johnstown. Defendant was driving his truck, loaded with coal, in a northwesterly direction along Rose Street towards Edson Avenjue, which intersects Edson Avenue at a right angle. According to defendant's testimony, he stopped at the stop sign of Rose Street and proceeded around the corner in a northeasterly direction into and along Edson Avenue. The minor plaintiff was standing on the sidewalk near the rounded curb line, partly facing the direction from which defendant's truck was proceeding. He testified that while standing close to the curb he felt a hard blow on his shoulder. The next thing he remembers was that he was lying on the street near the curb and the rear wheels of the truck were coming at him. He was not run over by the wheels but was wedged between the tire of the rear dual wheel and the curb.
The court in granting a new trial stated that it committed error when it charged the jury, in effect, that, even if the truck did not pass so close to the curb that any ...