Appeals, Nos. 197 and 198, March T., 1955, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 3454, in case of Helen Mae Koenig, a minor, by her guardian, Mary Rennebeck and Mary Rennebeck, in her own right v. Patrick F. Flaherty. Judgment affirmed.
I. E. Birsic, with him Eugene F. Scanlon and Cauley & Birsic, for appellants.
Herbert Jacobson, for appellees.
Before Stern, C.j., Stearne, Jones and Arnold, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeals are from a judgment of the Court of Common Pleas of Allegheny County in a trespass action refusing plaintiffs' motion for a new trial following a verdict by a jury for defendant.
The action was instituted by Helen Mae Koenig, a minor by her mother as guardian, and by the mother in her own right, appellants, against Patrick F.
Flaherty, appellee, for damages sustained by the minor when she was struck by appellee's automobile.
At 9:20 p.m., on July 16, 1953, appellee was operating his automobile in a northerly direction on Brighton Road, in the City of Pittsburgh. As he approached the intersection of Brighton Road and Westborn Street, he observed minor-appellant standing on the foot-walk at the northeast corner. Appellee reduced his speed from thirty to fifteen to twenty miles per hour and proceeded through the intersection with the traffic control signal in his favor. The minor on the sidewalk was looking in appellee's direction. When appellee was nearly through the intersection, the minor left the curb, passed in front of the appellee's automobile and was struck. The appellee admitted that he did not sound his horn and that he did not keep his eyes continuously on the minor-appellant while passing through the intersection.
It is contended by appellants that the jury's verdict was against the weight of the evidence and, therefore, the trial court's refusal to award a new trial constituted an abuse of discretion. This contention is without merit. There was a substantial conflict in testimony which was resolved by the jury in favor of the appellee. The refusal of a motion for a new trial will not be reversed except for a clear abuse of such discretion: Koch v. Imhof, 315 Pa. 145, 172 A. 672; Wilson v. Kallenbach, 332 Pa. 253, 2 A.2d 727; Bellettiere v. Philadelphia, 367 Pa. 638, 81 A.2d 857. No abuse of discretion has been established.
Appellants further maintain that the trial judge committed reversible error in his charge to the jury concerning contributory negligence by a minor. The court charged: "... The child, under 7 years of age, cannot be guilty of contributory negligence ...