Appeals, Nos. 183 and 184, Jan. T., 1955, from judgment of Court of Common Pleas of Monroe County, Feb. T., 1953, No. 5, in case of Adam Eckley, Admr., Estate of Darel D. Eckley, Deceased, and Adam Eckley, Admr., et al. v. Travis J. Seese. Judgment entered for defendant n.o.v.
George T. Robinson, for appellant.
Forrest J. Mervine, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
The sole question in this case is whether defendant is entitled to a judgment non obstante verdicto.
Darel Eckley, 3 1/2 years old, was killed in a heartrendering accident. At approximately 8:30 o'clock p.m., daylight saving time, on May 29, 1952, Mr. Eckley was driving his automobile on a concrete paved highway (18 feet wide) known as Route 209, in the Village of Brodheadsville, Monroe County, Pennsylvania. His wife was in the front seat of the four door sedan, Darel and his brother Dale, aged 8, were in the back seat of the car.*fn1 It was drizzling and the cars had their parking or low lights on at the time. Eckley said he was driving between 25 and 30 miles an hour. His son Dale suddenly said "The door" "Darel fell out". Eckley said "I stopped and looked back and seen him laying in the center of the road. He laid on his hands and on his knees. I seen a couple of cars coming [from the opposite direction] and put my hand out trying to slow them but couldn't. My wife jumped out of the car and I saw the car coming and I tried to stop the car. I seen it tried to straddle him
and seen he was trying to get up, and I don't know what happened."
Eckley first saw defendant's car when it was coming toward him about 200 to 250 feet away from him. Eckley estimated defendant was driving between 40 and 50 miles an hour and that he slowed down. There was a sign "35 mile speed limit". Eckley's car, going 25-30 miles an hour, traveled about 48 feet after he heard that Darel had fallen out. There were two cars in back of defendant and 2 or 3 in back of plaintiff.
Eckley further testified that defendant tried to straddle the boy and as he did so hit him with the bumper of his car and moved him about 15 feet. Defendant got down on his knees and pulled Darel by his legs out from under the car. Darel was under the front axle, but so far as any evidence showed, had not been run over at any time by defendant's or any other car. Eckley testified that he found some blood on the defendant's bumper guard and the reason he thought it was blood was that it looked red. On cross-examination Eckley admitted there was a steady flow of automobiles in both directions; that he never looked back at any time to see what position in his car his two boys were in; that the first time he knew about any danger was when his son Dale said "The door is open and Darel fell out"; that he did not continue to watch Darel but watched the traffic and put out his hand to flag the traffic; that he did not get out of his car because of approaching traffic, nor blow his horn, nor shout to defendant as defendant went by.
Eckley then made the following admissions: "Q. ... Didn't the Seese car after it had passed you at any time block your vision of Darel's position on the highway? A. Well, after he had passed me; yes. After he had, there was a closing up. After he got out about 8 or 10 feet, I couldn't see him. Q. After? A. After
he passed. Q. After Mr. Seese passed you? A. I would say, about 15 feet; yes. Q. You couldn't see Darel? A. I couldn't see Darel. Q. And you never saw him again until you saw him under the ...