Appeal, No. 320, Jan. T., 1954, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1952, No. 6225, in case of Joan Schneider, a minor, by her guardian, Helen Schneider v. Carl Sheldon and Carlyle C. Sheldon. Judgment reversed.
Joseph Weiner, with him Freedman, Landy & Lorry, for appellants.
Thomas E. Comber, Jr., with him Francis E. Shields and Pepper, Bodine, Frick, Sheetz & Hamilton, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiffs appeal from a judgment of compulsory non-suit entered in a trespass action for injuries to the minor plaintiff which she suffered when struck by an automobile operated and controlled by the defendant, Carl Sheldon. The answer of the other defendant, Carlyle C. Sheldon, admitted his ownership of the automobile but averred that it was being operated at the time of the accident by Carl Sheldon on his own business and pleasure and not as agent, servant or employee of the owner. At the outset of the trial, the plaintiffs took a voluntary non-suit as to Carlyle C. Sheldon and proceeded with the case against Carl.
The sole question involved is whether the evidence adduced in the plaintiffs' case warranted a finding by the jury that the minor's injuries resulted from negligence of the operator of the automobile. Contributory negligence did not figure in the court's action as the minor child was but four years old at the time of her injury. A recital of the facts, favorable to the plaintiffs, and the reasonable inferences to be deduced therefrom becomes necessary.
The accident occurred about 1:30 P.M. on a Sunday in October on Mount Vernon Street in Philadelphia in front of the residence where the minor, Joan Schneider, lived with her mother. The dwelling was just one house removed from the corner where Twentyfirst Street intersects Mount Vernon at right angles. Mount Vernon Street runs east and west and serves only westbound traffic, that is, traffic moving from Twentieth Street to Twenty-first Street. The cartway of Mount Vernon Street is 20 feet wide and is bounded by a sidewalk on either side, the one on the south side being 20 feet wide and the one on the north side 15 feet wide. The block on Mount Vernon Street between
the west building line of Twentieth Street and the east building line of Twenty-first Street is approximately 490 feet in length and is straight. At the time of the accident two automobiles were parked along the north curb of Mount Vernon Street near the west end of the block, opposite Joan's home.
The plaintiffs' only witness was a fourteen-year old girl, Rose Marie White, who testified that, when she came home from church about 1:30 P.M., she saw Joan coming out of her house. Joan went down to the curb to pick up some loose beads lying there and Rose helped her. After Rose had picked up about a handful, she saw a friend coming down the street and, giving Joan the beads, left her at the curb. Joan walked across the street toward the north side. But, unable to pick up beads there because of the cars parked close to the north curb, she walked back across the street to the south curb and again bent down to pick up beads. She was straddling the curb with one foot up on the pavement and the other in the street. Joan was in this position when Rose turned her head away. In a "matter of seconds", Rose heard the screeching of automobile brakes and saw Joan land on the south sidewalk. No other traffic had passed in the meanwhile. And, it was stipulated of record at trial that there was a contact between the Sheldon automobile and Joan. With the introduction of official city maps showing the locus in quo and relevant measurements, the plaintiffs rested the question of liability. On motion of the defendant, the trial court entered a compulsory non-suit which the court en banc later refused to take off.
The appellee states in his brief that "Plaintiffs' theory seems to be that defendant entered Mount Vernon Street at Twentieth Street and either saw or should have seen the ...