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CHAPPLE v. SELLERS (05/25/53)

May 25, 1953

CHAPPLE
v.
SELLERS, APPELLANT



Appeals, Nos. 36 and 37, March T., 1953, from judgments 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. Judgments affirmed.

COUNSEL

Russell R. Yost, with him Yost & Meyers, for appellant.

Morgan V. Jones, with him John M. Bennett and Weimer, Bennett & Jones, for appellees.

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

Author: Stearne

[ 373 Pa. Page 545]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

These are appeals from judgments entered on a verdict in favor of Thomas Scott Chapple, minor plaintiff, and his parents. The defendant assigns as error the refusal of the lower court to grant his motion for judgment n.o.v. The action was instituted in trespass to recover damages for personal injuries.

We had this case before us on a previous occasion following the appeals from the grant of a new trial: Chapple v. Sellers, 365 Pa. 503, 76 A.2d 172. A new trial has now been held. The facts which were developed at the second trial are the same as those originally presented.

In considering whether or not the court below properly denied defendant's motion for judgment n.o.v., we must view the testimony and the inferences reasonably deducible therefrom in the light most favorable to plaintiff: Snyder v. McGill, 265 Pa. 122, 108 A. 410; Backstrom v. Kaufmann Department Stores, Inc., 266 Pa. 489, 110 A. 235; McClintock v. Pittsburgh Railways Company, 371 Pa. 540, 92 A.2d 185.

[ 373 Pa. Page 546]

The minor plaintiff, about eight and one-half years of age, was playing with three other boys on the sidewalk at the northeast corner of Rose Street and Edson Avenue, in the City of Johnstown. The defendant drove his loaded coal truck in a northwesterly direction along Rose Street toward Edson Avenue and stopped at the stop sign prior to turning right into Edson Avenue. It was then approximately 10:30 a.m. on the morning of October 27, 1945. The boys were playing with a rope. The minor plaintiff was standing on the curb of Edson Avenue at an angle facing a house in front of him. The other boys were farther back on the sidewalk. The boys that testified stated that none of them saw the truck which was about to make the right hand turn until after the minor plaintiff was injured. The defendant saw the boys, however, as he proceeded along Rose Street. As the truck turned right into Edson Avenue, the minor plaintiff in some manner fell into the street and was crushed between the right rear dual wheels of the truck and the radius curb.

The question is whether there was sufficient evidence to support a finding by the jury that the overhang of the defendant's truck, or the truck body, struck the minor plaintiff.

The minor plaintiff testified that he was standing on the curb of Edson Avenue with his back to the street and while in this position "... felt a blow on my left shoulder, and I don't remember what happened after that, and then I remember I was lying down in the street looking up and I saw the back wheels of a truck coming at me, and then I ...


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