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SCHULTHEIS v. LEVIN (02/13/53)

February 13, 1953

SCHULTHEIS
v.
LEVIN, APPELLANT



Appeals, Nos. 258 to 263, incl. and 267 to 272, incl., Jan. T., 1952, from judgments of Court of Common Pleas No. 7 of Philadelphia County, Sept. T., 1950, Nos. 4122 and 4123, in cases of William Schultheis and Julia Schultheis, minors, by Frank Schultheis et ux., v. Jacob Levin and Fox-Weis Co.; and Frank Schultheis, Admur., Estate of Kathleen Schultheis, deceased, et al., v. Same. Judgment reversed as to defendant Jacob Levin, and affirmed as to defendant Fox-Weis Co.

COUNSEL

Ralth S. Croskey, with him Croskey & Edwards, for defendant, Fox-Weis Co., appellant.

J. B. H. Carter, for defendant, Jacob Levin, appellant.

Harry A. Takiff, with him William K. Ravetz, Robert V. Bolger, 2nd, and Takiff & Bolger, for appellees.

Before Stern, C.j., Jones, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 372 Pa. Page 515]

OPINION BY MR. JUSTICE MUSMANNO

On the morning of April 18, 1950, Kathleen Schultheis, close to nine years of age, and her sister Julia (seven years old) and brother (six years old) left their home at 1231 N. Fifth Street, Philadelphia, to go to school on Susquehanna Avenue, west of 13th Street. They arrived at the corner of Cumberland and 13th Street at about 7:40 o'clock. Just at this time a truck (which we will designate the Fox-Weis truck) was moving east on Cumberland Street, and another truck, (which we will call the Levin truck) was moving north on 13th Street. The latter street is a "Through" highway and Cumberland Street is a "Stop" street. On the southwest corner of this intersection a STOP sign confronts all eastbound traffic. The Fox-Weis driver ignored this obvious warning to halt and continued through the crossing at about 20 to 25 miles per hour. The Levin truck, authorized to proceed by the "Through" character of 13th Street, was already committed to the intersection when the Fox-Weis vehicle crossed its path. The Levin truck collided with the rear right end of the Fox-Weis truck, causing it to skid and spin in a clockwise manner toward the northeast corner of the intersection. Under its revolving momentum the Fox-Weis truck struck the northeast curb, then continued to turn and finally came to a halt in a completely reversed position, that is, facing west on Cumberland Street.

The three children now were lying in the cartway east of the rear of the Fox-Weis truck and about four feet south of the north curb, all badly injured and one

[ 372 Pa. Page 516]

    critically so. Kathleen died about two hours after the accident.

The administrator of the estate of Kathleen Schultheis and her parents brought a survival action and a wrongful death action against the owners of both trucks. The parents also instituted suit as guardians of William and Julia and in their own right for the damage sustained as a result of the injuries to these minors. Verdicts were returned in favor of the plaintiffs in all actions. Both defendants filed motions for judgment n.o.v. and the defendant Fox-Weis Company also filed a motion for a new trial, all of which motions were dismissed. Both defendants appealed from the dismissal of their motions.

We will consider first the appeal of the defendant Fox-Weis Company. It is argued in its behalf that there is no evidence to show that the Fox-weis truck was responsible for the death of Kathleen and the injuries to William and Julia Schultheis. It was testified at the trial that before the collision the Levin driver saw the three children on the northeast pavement of the intersection, and it was demonstrated, from the geographical location and the physical properties of the area involved, that the Levin driver could not have caught sight of the children until he was practically within the intersection, thus allowing only for the passage of the ...


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