Appeals, No. 274, March T., 1954, and No. 9, March T., 1955, from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1952, No. 1970 in case of Michael J. Vereb, Admr. of Estate of Richard T. Vereb, Deceased v. James Markowitz, Robert A. Peters and Herman F. Peters. Judgments affirmed. Trespass for wrongful death of minor child. Before LEWIS, J. Compulsory non-suit entered as to defendant Herman F. Peters; verdicts, for plaintiff estate in the sum of $5000., and for beneficiaries under Wrongful Death Acts in the sum of $1700., and against defendants Markowitz and Robert A. Peters, and judgments entered thereon. Defendant Robert A. Peters appealed.
Samuel W. Pringle, with him John David Rhodes and Dalzell, Pringle, Bredin & Martin, for appellant.
George S. Goldstein, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The plaintiff, Michael J. Vereb, instituted this action in trespass as administrator of the estate of his son, Richard T. Vereb, deceased, to recover damages under the Wrongful Death and Survival Acts occasioned when Richard was fatally injured as the result of being struck by two automobiles driven respectively by the defendant, James Markowitz, and the defendant, Robert A. Peters. A jury returned verdicts against both of these defendants in the amount of $1,700 under the Wrongful Death Act and $5,000 under the Survival Act. The court entered a compulsory non-suit as to the third defendant, Herman F. Peters, the owner of the car which Robert A. Peters was driving, there being no evidence of agency. Both of the remaining defendants filed motions for judgment non obstante veredicto and for a new trial. Subsequently the defendant Markowitz withdrew his motion for new trial. After argument the court dismissed both motions for judgment n.o.v. and the defendant Peters' motion for new trial. Peter's appeals from the judgments entered on the verdicts, assigning as error the refusal of his motions. Markowitz did not appeal.
The accident occurred about 6:30 P.M., November 10, 1951, on Main Street in the Borough of Munhall. Extending in a general north-south direction, Main Street is 36 feet in width with a street car track located in the middle. Between its intersection with Botsford Street on the north and Grace Street on the south, Main Street is intersected on the west by Walter Street. At the northwest corner of this intersection there was located a store known as the Park Super Market. There are other markets and stores north and south of Walter Street and the area is a business district and shopping center. It was well lighted by street lamps and lights from the stores. A speed limit of 25 miles per hour was posted on Main Street and both defendants were familiar with the area and testified they knew of this speed limitation. Main Street, from the testimony, was a very busy congested street, especially on Saturday evenings.
At the time of the accident, a Saturday evening, cars were parked on both sides of Main Street to the north and south of Walter Street, leaving "just enough room for two cars to pass each other in the middle of the street". Plaintiff's decedent, Richard Vereb, aged 10, and his older brother, Michael, aged 13, were making collections along a newspaper route managed jointly by the two boys. After making a collection at a house on the east side of Main Street, they proceeded to cross that street from a point approximately opposite the Park Super Market. After passing between two cars parked on the east side of the street, Michael, the older boy, continued across and reached the curb on the west side of the street, passing directly in front of the automobile of one Pingor who was parked along the west curb, and who was an eye witness of the accident. Richard, who was following his older brother across the street, reached a point somewhere in the
middle of the street when he was struck first by the one and then immediately by the other of the automobiles operated by the defendants who were driving in opposite directions. Markowitz was driving south and Peters north. Each of the cars was damaged at the left front by impact with the boy.
In establishing his case plaintiff called the two defendants as of cross-examination, and the witness Pingor. These there were the only eye witnesses of what occurred. The older boy, Michael, testified that he did not look back until he had walked across and safely reached the west curb of the street, and that then the accident had already happened. Markowitz's version of the accident was that the boy was first struck by the Peters automobile, thrown into and against the Markowitz car which in turn threw the boy back in front of the Peters car. Peters, on the other hand, testified that the boy was first struck by the ...