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VAN BUREN v. EBERHARD (01/12/54)

January 12, 1954

VAN BUREN
v.
EBERHARD, APPELLANT



Appeals, Nos. 281 and 282, Jan. T., 1953, from judgments of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1950, No. 6445, in case of Bruce VanBuren, a Minor, by his Guardian, Carl Van Buren, and Carl VanBuren, in his own right v. Lewis S. Eberhard and George Cole, William Grubbs and Albert Volker, trading as Manheim Body Repair. Judgments reversed.

COUNSEL

Harrison G. Kildare, with him Joseph W. Henderson, J. Welles Henderson and Rawle & Henderson, for appellants.

S. Walter Foulkrod, Jr., with him Morris Michael Marks, for appellees.

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

Author: Chidsey

[ 377 Pa. Page 24]

OPINION BY MR. JUSTICE CHIDSEY

This action of trespass was instituted by Carl Van Buren, the father of the minor plaintiff, in his own right and as guardian for the minor, Bruce VanBuren,

[ 377 Pa. Page 25]

    his four year old son, for injuries to the child, who was struck by an automobile operated by one of the defendants. The motor vehicle was owned by Lewis Eberhard, one of the defendants, but was not being driven by him. Since no agency relationship was established between Eberhard and the other defendants, a directed verdict was returned in his favor, which is not questioned by the plaintiffs. The liability of the other defendants, George Cole, William Grubbs and Albert Volker, who were partners trading as Manheim Body Repair, was submitted to the jury and they returned a verdict in favor of the minor plaintiff for $12,500 and for the father in the sum of $7,500. The defendants moved for judgment non obstante veredicto and for a new trial, both of which motions were denied. From the judgments entered on the verdicts, following the dismissal of the motions the present appeal is taken.

The sole question posed by the defendants' motion for judgment n.o.v. is whether there was sufficient evidence of defendants' negligence to submit to the jury. Since the minor plaintiff was only four years of age, he could not be charged with contributory negligence.

We necessarily turn, therefore, to the facts, mindful of the requirement that we must read the testimony and all inferences reasonably deducible therefrom in a light most advantageous to the plaintiffs and resolve all conflicts in their favor. So viewed, the following facts appear: George Cole, one of the defendants, was driving a 1949 Hudson sedan which his partners had just repaired. The car was to be delivered to the Roxy Motors Company, located in the Germantown section of Philadelphia, for additional repairs, sometime around noon. The accident occurred at 4:45 P.M. Defendant Cole admitted that somehow he had

[ 377 Pa. Page 26]

    become lost and in the process of finding his way, turned off the main streets and found himself on Newhall Lane, an improved street which does not exist on the city plan, but which, nevertheless, is open to public use. Newhall Lane is 18 feet wide and has no sidewalks. It runs north and south through a low-cost public housing project from Price Street on the south to Rittenhouse Street on the north, a distance described in the record as about three-quarters of a block.

The weather was clear and the road surface was dry. Defendant Cole testified that except for an automobile parked on the east side as he first entered Newhall Lane, there was nothing to obstruct his view as he proceeded northwardly in the center of the street. He admitted seeing two signs on the east side of the street which read "Caution -- Children at Play" and "Speed Limit 15 Miles" respectively.

One of the plaintiffs' witnesses, Sybil Buffman, testified that on the day of the accident she was returning from shopping to her apartment in the housing project. She stated that before entering her apartment she observed a group of 10 or 12 children playing in the street and on the curb near the third tree south of Rittenhouse Street (which is approximately in the middle of the block on the east side). She said that she entered her apartment, and, after opening her window to deposit some trash on a ledge, she saw a body (later identified to be the minor plaintiff) flying through the air for a distance of approximately 30 feet; that immediately behind the body, traveling in the same direction, she saw the automobile operated by ...


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