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LAYMAN v. GEARHART. (05/29/57)

May 29, 1957

LAYMAN, APPELLANT,
v.
GEARHART.



Appeals, Nos. 17 and 18, March T., 1956, from judgment of Court of Common Pleas of Fayette County, Sept. T., 1953, No. 812, in case of Roy Layman, a minor, by Gilbert Layman and Edith Layman, his wife, guardians of said minor, and Gilbert Layman and Edith Layman, his wife, in their own right, v. George E. Gearhart. Judgment affirmed.

COUNSEL

Anthony Cavalcante, for appellants.

David E. Cohen, with him Joseph W. Ray, Jr. and Ray, Coldren & Buck, for appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 389 Pa. Page 189]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

These appeals are from the refusal of the court below to take off a non-suit entered in a trespass action instituted for the recovery of damages for injuries sustained by a minor-pedestrian when struck by an automobile.

At approximately two o'clock in the afternoon of December 8, 1951 - a clear day - appellee was driving his automobile in an easterly direction on a macadam state highway which runs generally from Connellsville to Melcroft in Fayette County, this state. As this highway passes through the hamlet of Clinton, it is intersected at right angles by another state highway. The intersection is marked with both directional and school zone signs. As the appellee approached this intersection from the west, the minor appellant, Roy Layman, aged 8 years, was observed by two witnesses walking across the grounds of a public school, which school is located on the southerly side of the Connellsville-Mel-croft Highway and east of the intersection. They noticed that he was eating something which he held in his hand as he walked along. Just where on the school grounds the boy was walking was not depicted either with exactness or even approximation.

One of the appellants' witnesses testified she saw some children proceeding westerly on the northerly

[ 389 Pa. Page 190]

    side of the Connellsvill-Melcroft Highway east of the intersection, and that appellee's car was coming "very fast" on the southerly side of said highway, west of the intersection. Another of appellants' witnesses testified that appellee's car was moving "very rapidly". Both of these witnesses testified that they heard the squeal of brakes after appellee's automobile had passed the crossroad service station - located at the southwest corner of the intersection - where they were standing, that they saw the automobile running in the ditch on the southerly side of the highway, and that they saw appellee pull the minor child from beneath his car after it stopped with its two right wheels in the ditch and its two left wheels on the highway.

No eye-witness to the accident was called. Appellants sought to establish a prima facie case solely by the testimony of the two witnesses previously mentioned and two additional witnesses, who neither heard nor saw the accident. The appellee presented no evidence.

At the trial it was established that appellee's car had stopped 122 feet east of the intersection and that skid marks ran from the car backward to a point on the highway ...


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