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EBERSOLE v. BEISTLINE (06/27/51)

June 27, 1951

EBERSOLE, APPELLANT,
v.
BEISTLINE



Appeals, Nos. 34 and 35, May T., 1951, from judgment of Court of Common Pleas of Dauphin County, Jan. T., 1948, No. 102, in case of George E. Ebersole, Jr. et ux., surviving parents of George E. Ebersole, 3rd, a minor, deceased, et al. v. Donald Beistline. Judgment affirmed.

COUNSEL

Maurice R. Metzger, with him Edward E. Knauss, 3rd, and Metzger & Wickersham, for appellants.

Thomas D. Caldwell, with him Carl B. Stoner and Caldwell, Fox & Stoner, for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

Author: Stern

[ 368 Pa. Page 14]

OPINION BY MR. JUSTICE HORACE STERN

Around midday on January 31, 1947 an automobile operated by defendant was proceeding southwardly on Lumber Street in the Borough of Highspire, and, at a point 4 feet from the west edge of the macadam and 43 feet south of the center of the intersection of Lumber and High Streets, his car struck a bicycle on which George E. Ebersole, III, a nine year old boy, was riding. Lumber Street is 22 feet in width; High Street is a dead-end street running into Lumber Street from the east. After the accident the boy's body was found lying on the west curb 90 feet south of the point of impact of the two vehicles; his bicycle was nearby. He was pronounced dead on arrival at the hospital.

The present suit was brought to recover damages under the Survival and Death Statutes. The trial court gave binding instructions to the jury to find a verdict for defendant, discharged plaintiffs' rule for a new

[ 368 Pa. Page 15]

    trial, and entered judgment on the verdict, from which judgment plaintiffs now appeal.

All the evidence in the case came from plaintiffs' witnesses; defendant presented no testimony. No eye-witnesses to the accident were called, plaintiffs seeking to prove their case solely by certain alleged admissions made by defendant following the accident and by testimony in regard to the condition of the damaged bicycle. The Chief of Police testified that defendant pointed out to him the place where he struck the bicycle and that he stated he had not seen the boy until he hit him, that at the time of the accident he was going between 20 and 25 miles an hour, and that, when the impact occurred, not knowing whether the boy was caught on the bumper of his car, he was afraid to put his brakes on immediately for fear that, if the boy was hooked on the bumper, he might throw him under the wheels of the car. Plaintiffs offered to prove that at a hearing before the Secretary of Revenue to determine whether defendant's operator's license should be suspended defendant admitted he was travelling at a speed of 35 miles an hour and that he knew that children used Lumber Street to go to and from school, either walking or on bicycles. The court sustained an objection to this testimony on the ground that the best evidence would be the stenographic notes taken at the hearing and those notes were not offered in evidence. We need not now determine the correctness of this ruling, because, for purposes of the present discussion, we shall consider this testimony as if it had been admitted into the record. The only other evidence presented by plaintiffs was that the damage to the bicycle was all to the rear part of it; the hind wheel and the pedals were bent, the rear fender was jammed up against the seat, and the seat was pushed forward.

The principles applicable to cases of this kind have been so frequently proclaimed ...


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