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BENNETT ET AL. v. BONEY ET AL. (01/12/51)

January 12, 1951

BENNETT ET AL.
v.
BONEY ET AL.



COUNSEL

J. Thomas Hoffman, Pittsburgh, for appellants.

J. Roy Dickie and Dickie Robinson & McCamey, all of Pittsburgh, for appellees.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 168 Pa. Super. Page 387]

HIRT, Judge.

The minor-plaintiff -- we shall refer to him as the plaintiff -- while walking along the side of a county road was struck from the rear by a truck owned by the defendants and operated by their servant. In this action the jury found in his favor and also for his parents in amounts which reflect their damages resulting from his injury. The question here is whether judgments notwithstanding the verdicts were properly entered in favor of the defendants by the court below on its conclusion, as a matter of law, that the defendants were not chargeable with negligence.

There is no dispute as to the material facts. During the summer of 1939 the County of Allegheny undertook the construction of a two-lane concrete pavement at new grades on a public county highway known as Buttermilk Hollow Road. The section of the road under construction extended southwardly, from a point near Homestead, to its junction with Lebanon Church Road. Barriers were placed at both ends of the work which closed the highway to all except those living along the section of the road under construction. At both ends of the project the County of Allegheny also erected large signs giving notice of the new construction. Defendants had supplied a truck and a driver to a subcontractor on the work. Concrete had been laid on the east lane of the newly constructed road from its north terminus southwardly to within a short distance of Lebanon Church Road. The west lane had been brought to grade but had not been surfaced with concrete.

On July 13, 1939, the plaintiff, then age 17, entered upon the road by way of 'the new construction job' seeking employment as a water boy, from the contractor on the work. He had noted what he interpreted as a 'no trespassing sign' on the highway under construction at its intersection with Lebanon Church Road.

[ 168 Pa. Super. Page 388]

He walked northwardly along the west side of the road to a concrete mixer in operation in the east lane of the new highway. There he was informed where the employment boss might be found and he then continued to walk northwardly along the west side of the unpaved portion of the road. Plaintiff in passing, also observed the defendants' truck at the concrete mixer, headed south, with the front of the body raised. It was this truck that struck him when it backed away, after discharging its load of gravel and cement into the mixer. Plaintiff was struck from the rear without warning, at a point about 25 feet north of the mixer; he did not know what had struck him. Defendants' driver did not have notice that the plaintiff was walking on the road behind him and from his seat on the truck he could not have observed plaintiff if he had looked. He did not put himself in position to see what was behind him before backing his truck. But he did testify that while backing the held the left door of his truck open and looked back but that plaintiff was hidden from his view by the body of the truck.

When a road is closed by the State or, as in this instance, by competent municipal authority it ceases to be a highway subject, as such, to the provisions of The Vehicle Code of May 1, 1929, P.L. 905, as amended, 75 P.S. § 1 et seq. And since the County of Allegheny closed the county road in question, for the purpose of regrading and the construction of a new concrete pavement, § 3 of the Code, as amended, 75 P.S. § 571, relating to the care to be observed by the driver of a vehicle 'upon a highway', has no application here.

Plaintiff by his testimony indicated that he had observed one of the conspicuous signs and the barriers erected by the County. Although this was a public road at the time of plaintiff's injury it was closed to ...


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