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JONES v. CARNEY (10/05/53)

October 5, 1953

JONES, APPELLANT,
v.
CARNEY



Appeals, Nos. 204 and 205, Jan. T., 1952, from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1950, No. 4041, in case of Richard A. Jones, a minor, by his guardian, Alvus C. Jones, and Alvus C. Jones et ux. v. Cornelius A. Carney. Order reversed.

COUNSEL

John M. McNally, Jr., with him Francis J. McCarthy, for appellants.

Robert C. Kitchen, with him Richard A. Smith, for appellee.

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

Author: Arnold

[ 375 Pa. Page 33]

OPINION BY MR. JUSTICE ARNOLD

The plaintiff appeals from the order of the court below refusing to take off a non-suit in an action of trespass for personal injuries suffered by a three year old child when struck by defendant's automobile.

In accordance with the well known rule of law that the testimony must be viewed in a manner most favorable to plaintiffs, giving them the benefit of all reasonable

[ 375 Pa. Page 34]

    inferences that may be drawn therefrom, we think that the order of the court below must be reversed.

On a clear, dry day defendant was driving his car in a northerly direction on Day Street, between Wildey and Girard Streets in Philadelphia, at a speed of 30 miles per hour.*fn1 Day Street is 20 feet wide between the curbs and 403 feet in length, and is a residential locality. The street has a ten foot wide walk on each side. At the time of the occurrence there were cars parked on the east side, which was to the defendant's right, but the defendant had an unobstructed view of the west side of Day Street. The accident happened about midway between Wildey and Girard Streets.

The minor plaintiff, three years of age, had been playing on the west side of the street. The plaintiff's niece had been watching him from the window of their home on the east side and saw him in the street. She jumped up and knocked on the window, and then darted toward the door to get him out of the street. The next thing she knew she heard the scream of brakes. At the time she knocked on the window the child was "just about in the middle of the street."

A disinterested witness standing on the steps of her home on the east side of the street and to the north of the boy, first saw him "on the west side of the street apparently coming across to the east side. Then he decided to go back to the west side... [and defendant's] car struck him." She saw the boy standing in the street "a matter of seconds, three or four seconds at the most. It happened so fast." Defendant, called for cross-examination, testified that ...


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