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PIERONTONI v. BARBER (01/11/56)

January 11, 1956

PIERONTONI
v.
BARBER, APPELLANT.



Appeals, Nos. 306 and 307, Jan. T., 1955, from judgments of Court of Common Pleas of Luzerne County, Jan. T., 1955, No. 795, in case of Joseph A. Pierontoni, a minor, by Albert Pierontoni, his guardian, and Albert Pierontoni and Josephine Pierontoni v. Michael Barber, trading as Barber Motor Company. Judgments affirmed.

COUNSEL

Philip Price, with him F. Hastings Griffin, Jr., Robert J. Doran, Reynolds, Reynolds & Doran and Barnes, Dechert, Price, Myers & Rhoads, for appellant.

Henry Thalenfeld, with him Harold R. Wruble, for appellees.

Before Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.

Author: Musmanno

[ 384 Pa. Page 58]

OPINION BY MR. JUSTICE MUSMANNO

The facts in this case narrate a harrowing tale. Joseph A. Pierontoni, twelve years of age, while crossing a highway on a bicycle, was struck by an automobile travelling at a high rate of speed. The ornament on the hood of the car plunged deeply into the boy's back. Thus impaled the lad was carried 60 feet when, as the car finally stopped, he was thrown forward 7 to 10 feet from his demolished bicycle into the road. It is unnecessary to relate the nature of his dreadful injuries. It is enough to say that they were of such a character that he will remain a hopeless, immobile cripple for the remainder of his days. The jury awarded $75,000 to him and $10,000 to his parents. The defendant makes no complaint with regard to these amounts, tacitly admitting they are not excessive.

The appeal here is directed to the questions of negligence and contributory negligence. The appellant contends that the accident could not happen the way it was described by the plaintiff witnesses, and, if it did, the facts convict the minor plaintiff of contributory negligence. But as we read the record, there is nothing in the plaintiff's case which challenges credulity or overwhelms belief. If there is any feature of the case which might seem to be incredible, it is that the boy escaped with his life.

Employed as a caddy at the Fox Hill Country Club, Joseph Pierontoni travelled from his home on a bicycle over a well-worn pathway which cut through the Exeter Colliery grounds, emerged on to Packard Street, and, on the other side of the street, continued its journey to the golf course at a point close to the fourteenth green. Although denominated a "Street," the thoroughfare on which the accident occurred is really a

[ 384 Pa. Page 59]

    country road, black-topped, and only 14 feet 2 inches wide.

On the day of the tragic occurrence, Alfred P. Sassaman, employed as a mechanic by the defendant Michael Barber, was testing for his employer a Ford automobile on which he had made repairs. After travelling over several highways he came to Packard Street and started down a long descent which traversed the intersecting path already mentioned, at a speed of from 60 to 65 miles per hour. Just a few moments before, the minor plaintiff had arrived on the path at a point 3 feet from Packard Street, where he stopped and looked to the right and left, seeing nothing on the highway. Mounting his vehicle again he advanced to the paved portion of the road and now saw the defendant's car 750 feet away at the crest of the hill. Assuring himself that he could easily gain the other side before the car could cover the intervening distance, he began to pedal across. When he reached the center of the road the automobile descended upon him like a thunderbolt.

Since Packard Street is only 14 feet wide and the collision occurred at the center of it, it follows that Joseph had moved only 7 feet into the road before the catastrophe. The appellant claims that it was impossible for him to have travelled 750 feet while Joseph moved only 7 feet. Appellant's counsel therefore, argues for judgment n.o.v. on the incontrovertible physical facts rule. That rule, however, can have no application here.*fn* Where the event under ...


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