Appeals, Nos. 255, 256 and 257, Jan. T., 1954, from judgments of Court of Common Pleas No. 5 of Philadelphia County, March T., 1951, No. 5897, in case of Kathleen Fries, Admrx., Estate of William Martin Fries, a minor, Deceased, and Patrick F. Fries, a minor, et al. v. Harry Ritter, formerly trading as Harry Ritter and Charles Ritter, trading as Ritter Brothers, et al. Judgment modified and affirmed.
J. D. Shein, with him James C. Crumlish, Jr. and Joseph P. Breslin, for appellants.
Isadore H. Bellis, with him Arnold M. Kessler and Bernstein & Bernstein, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
Defendants ask for judgment non obstante veredicto and for a new trial because the verdict in the survival action was excessive.
On May 20, 1950, about 11 o'clock A.M., Patrick Fries, 9 years of age, was riding a bicycle south on Pennsylvania Avenue in Prospect Park, Delaware County, which intersected at right angles with 9th Street, but thereafter came to a dead end. His brother, William, 4 1/2 years old, was riding on the handlebars. He intended to turn left and go east on 9th Street. When he was approximately 130 feet north of the corner he looked across the open lot on his left and saw defendant's truck, which was about to make a left turn from Summit Avenue and go west on 9th Street. At that point the truck was approximately 260 feet away from him. As Patrick neared 9th Street he saw a tar spot in the road and turned his bicycle from the right side of Pennsylvania Avenue to a foot or two to the left of center. When he was about 60 feet north of 9th Street he saw the truck on 9th Street at about the same distance as he was from the corner of 9th Street and Pennsylvania Avenue. When he saw the truck was apparently not going to stop he tried to put on his brakes, but the brakes would not work. The bicycle and the truck collided; William was killed and Patrick was seriously injured.
The speed of the bicycle and the truck and the exact position of the collision are unknown, but the evidence disclosed (a) Patrick woke up lying on Pennsylvania Avenue about even with the north curb of 9th Street; (b) his bicycle was on the sidewalk of the northeast corner with its front wheel smashed; and (c) the truck stopped on 9th Street a couple of feet out from the north curb and 50 feet west of Pennsylvania Avenue.
The law is clearly settled; the difficulty arises in close cases such as this of applying the principles to the facts. Plaintiff must prove by a fair preponderance of the evidence that defendant was guilty of negligence and that defendant's negligence was the proximate cause of the accident. Plaintiff must also make out a case free from contributory negligence and the mere fact that a collision took place is not evidence or proof of negligence: Brusis v. Henkels, 376 Pa. 226, 102 A.id 146; Finnin v. Neubert, 378 Pa. 40, 105 A.2d 77; Lewis v. Quinn, 376 Pa. 109, 101 A. d 382; Ebersole v. Beistline, 368 Pa. 12, 82 A.2d 11.
It is not necessary to prove the accident by eye witnesses, but where circumstantial evidence is relied upon to prove negligence the evidence must be such as to enable the jury to conclude - not by conjecture or guess but - as a reasonable and legitimate inference that the accident was caused by the negligence of the defendant. In order to do so the evidence must clearly and sufficiently describe or picture the happening of the accident in such a manner that the only reasonable inference and conclusion from the facts and circumstances which were proved is that defendant was negligent: Ebersole v. Beistline, 368 Pa., supra; Finnin v. Neubert, 378 Pa., supra.
Considering the evidence and all reasonable inferences therefrom in the light most favorable to plaintiff, as we must sur a motion for judgment non obstante veredicto - Finnin v. Neubert, 378 Pa., supra - the jury could reasonably and legitimately have concluded that defendant's truck driver, looking across an open lot with no traffic on either street, could have seen plaintiff's bicycle some 200 feet away and when the truck neared the corner ...