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August 31, 1955

Dolores BARKER, Administratrix of the Estate of Robert P. Ebbecke, Deceased,
CITY OF PHILADELPHIA, Room 202, City Hall, Philadelphia, Pennsylvania

The opinion of the court was delivered by: LORD

This action was instituted by Dolores Barker, administratrix of the estate of Robert P. Ebbecke, deceased, to recover damages under the Wrongful Death, 12 P.S. §§ 1601 et seq., and Survival Statutes of Pennsylvania, 20 P.S. ch. 3 Appendix, § 771, for the death of Robert P. Ebbecke, a minor, on August 18, 1952. Plaintiff alleged the minor's death resulted from the negligent operation of one of the City of Philadelphia's trash trucks.

The case was tried before a jury and resulted in verdicts in favor of the estate and the parents of the deceased minor. Defendant has filed the present motion to set aside the verdicts and for judgment n.o.v.

 The question is: Should a prudent or reasonably cautious man have foreseen that the alleged negligent act of defendant would result in the injury sustained?

 On the east side of the block where the accident occurred is a vacant lot which attracts children from time to time. On the west side of the same block is a City playground where at the time of the accident, 'quite a gang of' children were playing.

 On the afternoon of the accident, the driver of the City's truck was proceeding down this street to the garage. As he approached the scene where the accident occurred, he came upon another City truck double-parked in the street and headed in the same direction. The driver of the double-parked vehicle motioned that it was all right to proceed around him. Thereupon, the driver of the City truck which was in motion turned out into the extreme left-hand side of the street, in attempting to pass the City vehicle which was parked. While doing so, the driver noticed a huge piece of brown wrapping paper approximately six feet in diameter and two or three feet in height. This paper was lying partially in the gutter and partially on the curb on the east side of the street. The driver stated he did not desire to run over the paper because it might contain broken bottles and thus injure the tires of the truck. He attempted to avoid it by judging the distance between the paper and the City trash truck that was double-parked. After endeavoring to pass between these two objects, he then proceeded on to the garage.

 What, in fact, actually happened was that the driver misjudged the truck's position with respect to the paper and ran over it, crushing to death the boy who was under the paper with a playmate.

 At the conclusion of the trial, the Court charged the jury in substance as follows:

 'In the argument of counsel much has been said as to the foreseeability of the danger on the part of the truck driver. The law as to this is that one cannot be held legally liable for injury to the personal property of another unless by the exercise of that degree of care and caution which a prudent or reasonably cautious man, acting under similar circumstances, would exert could he have foreseen, not the extent of the injury or damage, or manner in which it occurred, but could have foreseen that some injury or damage to the person or property of another would reasonably be expected to ensue as the result of his action or conduct.

 'In this case the question for you to determine as a fact is whether the truck driver acted as a reasonably prudent and cautious man would act in driving his truck under the facts and the evidence as they have been testified to in this case. If he did you should find for the defendant. If he did not your verdict should be for the plaintiff. Could he have foreseen that the injury would reasonably be expected as a result of his conduct? If he could, you should find for the plaintiff. If he could not, your verdict should be for the defendant.'

 To determine if there was negligence, it is necessary to ascertain first if a prudent or reasonably cautious man should have foreseen that his act would cause injury.

 Negligence has long been defined generally as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Blyth v. Birmingham Water Works, 11 Exchequer 781 (1856).

 Thus, negligence is a matter of risk -- that is to say, of recognizable danger of injury. In most instances, it is caused by an act of heedlessness or carelessness, where the negligent party is unaware of the results which may follow from his act. But it may also exist where he has considered the possible ...

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