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FINNIN v. NEUBERT (05/24/54)

May 24, 1954

FINNIN, APPELLANT,
v.
NEUBERT



Appeal, No. 72, March T., 1954, from order of Court of Common Pleas of Westmoreland County, August T., 1952, No. 566, in case of John E. Finnin et ux. and Robert Allen Finnin, a minor, by John E. Finnin, his guardian, v. Dale Neubert. Order affirmed. Trespass for personal injuries. Before LAIRD, P.J. Compulsory non-suit entered; plaintiffs' motion to take off non-suit refused and final decree entered, before LAIRD, P.J., McWHERTER and BAUER, JJ., opinion by LAIRD, P.J., concurred in by McWHERTER and BAUER, JJ. Plaintiffs appealed.

COUNSEL

Marquis M. Smith, with him Edgar P. Herrington, Jr., for appellants.

Paul M. Robinson, for appellee.

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

Author: Bell

[ 378 Pa. Page 41]

OPINION BY MR. JUSTICE BELL

This is an appeal from a compulsory non-suit. In such an appeal plaintiffs must be given the benefit

[ 378 Pa. Page 42]

    of all the favorable testimony and every reasonable inference of fact arising therefrom; and all conflicts therein must be resolved in their favor: Parker v. McCrory Stores Corp., 376 Pa. 122, 101 A.2d 377; Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382.

All of the facts, including the place and the cause of the accident, are very meagre, but viewed in the light of the foregoing authorities may be thus stated:

Defendant was driving his automobile south on Constitution Boulevard in the City of New Kensington, Westmoreland County, on December 24, 1951 at about 11:30 o'clock A.M. Constitution Boulevard is a 25 foot wide street running (generally speaking) north and south and paralleling the railroad tracks which were very close to the street. A walk for pedestrians runs along the railroad tracks parallel with the Boulevard and is separated from the Boulevard for a considerable distance by a concrete wall and then by a continued iron pipe fence 3 feet high. The traffic light on Constitution Boulevard was green for defendant at its intersection with McCargo Street, which ran into but did not intersect the Boulevard, forming as it were a T. Unfortunately young Finnin, who was 11 1/2 years old, could not remember or relate any details of the accident. He was badly injured and was lying on the west side of Constitution Boulevard approximately 8 to 10 feet east of the concrete wall and 3 to 5 feet from the intersection of the wall and the fence, with his head toward the wall or fence and his body virtually perpendicular to the wall or fence.

The only witnesses of the accident were Mr. and Mrs. Neubert. Mr. Neubert, the defendant, was called by plaintiffs as for cross-examination and testified as follows: "... my wife and I were coming down Constitution Boulevard and we were approaching ...


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