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ROBB v. MILLER (02/13/53)

February 13, 1953

ROBB, ADMRX.,
v.
MILLER, APPELLANT



Appeal, No. 193, Jan. T., 1952, from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1950, No. 5195, in case of Loretta Robb, Admrx., estate of David Robb, deceased v. Frank Miller. Judgment affirmed.

COUNSEL

Michael A. Foley, for appellant.

Charles A. Lord, with him Elwood S. Levy, D.J. Farage, Jr., and Richter, Lord & Farage, for appellee.

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

Author: Musmanno

[ 372 Pa. Page 506]

OPINION BY MR. JUSTICE MUSMANNO

North Lawrence Street in Philadelphia is a one way, southbound thoroughfare about 26 feet wide with row houses on the east side of the street, and a school building with school yard and a junk shop on the west side. Vehicles were parked on both sides of the street at the time of happening of the accident which is the subject of this lawsuit. On the afternoon of June 6, 1950, at about 2:45 o'clock, the defendant's car, while moving southwardly on this street at the rate of from 25 to 30 miles per hour, struck five-year old David Robb, who was crossing in the middle of the block directly in front of his home, inflicting mortal injuries. The parents recovered a verdict in the ensuing trial. From the judgment entered on that verdict the defendant has appealed.

Section 1002 of The Vehicle Code places a maximum speed of 15 miles per hour on all motor vehicles passing school buildings during school recess. On the day of the accident a bazaar or carnival for children was in progress in the school yard, thus reasserting the need for a reduced speed, even perhaps lower than the maximum permitted by The Vehicle Code. The defendant was familiar with the neighborhood and was charged with knowledge of the movement of children on this street.

[ 372 Pa. Page 507]

This is not a "darting out" case in the usual interpretation of that term. The child emerged from between two cars but was in the middle of the street when the defendant saw him 15 feet away. If the motorist had been proceeding at the rate of speed dictated by law and circumstance, he could have stopped his car in time to avoid striking the child.

In Quattrochi v. Pittsburgh Rys. Co., 309 Pa. 377, this Court properly observed: "'It is common knowledge that special caution is required for the protection of children who congregate in the vicinity of a school house.' Mulhern v. Phila. Homemade Bread Co., 257 Pa. 22, 24. We have frequently mentioned the high degree of care imposed upon the driers of vehicles owing to 'the tendency of small children to run across streets, especially at or near schools'... In Frank et al. v. Cohen, 288 Pa. 221, 225, this court said 'the presence of children in large numbers in his immediate way, should have caused him (the driver of an automobile) to exercise the degree of care their presence required... It becomes his duty, in passing through or by these groups to bring his car under such control that it can be stopped on the shortest possible notice.'"

While drivers are not required to anticipate that a child will run from a place of safety into the paty of oncoming vehicles, as many of our cases hold, they (the drivers) are always charged with care under the particular circumstances.

In driving through any locality where children are known to be in movement, motorists should drive with the care and caution of one walking through an infant's nursery. Every fully developed adult knows that children, especially those of tender age, are enthusiastic, impulsive and given to sudden, unanticipated movements. It is also ...


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