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SCHWEINBERG v. IRWIN (11/15/54)

November 15, 1954

SCHWEINBERG, ADMR.,
v.
IRWIN, APPELLANT.



Appeals, Nos. 160 and 161, March T., 1954, from order of Court of Common Pleas of Allegheny County, July T., 1951, No. 2596 and Oct. T., 1952, No. 2715, in cases of Paul Schweinberg, Sr., Admr., Estate of William Schweinberg, Deceased, et al. v. John Franklin Irwin; and Robert Kane, a minor, by his guardian, Agnes R. Kane v. Same. Order affirmed. Action of trespass for personal injuries. Before SOFFEL, J. Verdict for defendant; plaintiffs' motion for new trial granted, before THOMPSON, SOFFEL and MONTGOMERY, JJ., opinion by SOFFEL, J. Defendant appealed.

COUNSEL

Carl W. Brueck, for appellant.

Robert Palkovitz and T. Robert Brennan, with them David S. Palkovitz, Jack Palkovitz and Brennan, Brennan, Damrau & Mohan, for appellees.

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

Author: Musmanno

[ 379 Pa. Page 361]

OPINION BY MR. JUSTICE MUSMANNO

March 31, 1951, was an ideal Spring day in Munhall, Pennsylvania. The skies were clear, the sun shone and children played on the streets. On McKinley Street, which runs east and west, a basketball game was being played with all the enthusiasm and freedom of a game unfolding in a gymnasium. Some 15 boys ran, leaped and pitched the ball at an improvised basketball hoop fastened to a telegraph pole. In the midst of their sport a Plymouth Sedan approached from the east. The boys halted the game, divided and moved to either side of the highway to let the motorist pass and then resumed their game.

The car continued along McKinley Street at a speed of from 10 to 15 miles per hour, proceeding westwardly toward Davis Avenue which intersects McKinley on a steep downgrade from the motorist's left. As the motorist, John Franklin Irwin, approached Davis Avenue he heard the noise of rapidly revolving wheels. The closer he got to Davis Avenue the faster the wheels seemed to spin and the louder noise they made.

Where Davis Avenue flows into McKinley it is bounded on its eastern side by a 3 feet-high wall surmounted by shrubbery. This landscaping screens

[ 379 Pa. Page 362]

Davis Avenue to the extent that anyone approaching Davis on McKinley from the east cannot see what may be moving on Davis until he is about one-fourth of the way through the intersection.

In no way reducing his speed or increasing his caution the driver of the Plymouth Sedan struck into the crossing, looking first to the right and then to the left. As he passed the two-thirds distance mark in the intersection the noise of the revolving wagon wheels exploded into a crash. Irwin threw on his brakes and brought his car to a stop 20 feet beyond the southern line of McKinley Street. Twenty-five feet to the rear of his car two small boys lay face downward in the street. Splinters and blood bespattered the surface of the highway and a smashed scooter wagon was lodged beneath the Plymouth Sedan. The boys were taken to the hospital. One, William Schweinberg, age 6, died soon after; the other, Robert Kane, age 7, still suffers from crippling injuries received in the collision.

Lawsuits followed and at the combined ensuing trial the jury returned a verdict for the defendant. The learned Trial Judge, with the concurrence of the two other judges who sat with her in the court en ...


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