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ALLEVA v. PORTER (09/03/57)

September 3, 1957

ALLEVA
v.
PORTER, APPELLANT.



Appeals, Nos. 136, 137, Oct. T., 1957, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Sept. T., 1954, No. 169, in case of Arthur Alleva, Administrator of the Estate of William Alleva, deceased, v. Abraham Porter. Refusal of judgment for defendant n.o.v. affirmed; order awarding new trials reversed; and judgments directed to be entered on verdicts.

COUNSEL

Ralph S. Croskey, with him Croskey & Edwards, for appellant.

Bernard I. Shovlin, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Ervin, JJ. (watkins, J., absent).

Author: Hirt

[ 184 Pa. Super. Page 336]

OPINION BY HIRT, J.

In the late afternoon of August 19, 1954 the defendant, driving his automobile eastwardly on Rodman

[ 184 Pa. Super. Page 337]

Street in Philadelphia, struck a 4 1/2 year old boy in the cartway. In this action for damages resulting from the child's death the jury found for the plaintiff in the total sum of $3,614.10 - $1,114.10 under the Death Act*fn1 - and $2,500 under the Survival Act.*fn2 Defendant's motion for judgment n.o.v. was denied by the lower court in banc, but a new trial was ordered on plaintiff's application because, in the opinion of the lower court, the verdict in the Survival action was inadequate. Defendant in this appeal contends that there is error in the final orders of the court in both respects.

Rodman, a one-way street for eastbound traffic, is 20 feet wide, curb to curb. Along the north side of the street there is a pedestrian sidewalk pavement 6 feet wide, at the foot of row houses fronting on the street at an elevation of about 6 feet above it. The decedent child, with two other small children had descended the steps from the Glick home three doors west of plaintiff's house and were on the north sidewalk when defendant's car was observed as he drove it on Rodman Street eastwardly from 58th Street. Cars were parked along the south side of Rodman Street leaving an open cartway for the defendant's car of but only 13 or 14 feet wide. Defendant conceded that he did not observe the presence of any children on the sidewalk or on the paved cartway of the street. And admittedly he did not see the plaintiff child in the path of his car until after he had run over the boy at a point about 185 feet east of 58th Street. Two witnesses, one of whom was a taxi driver, who saw defendant's car but only momentarily before it struck the child, estimated his speed at 30 to 35 miles per hour; another witness testified

[ 184 Pa. Super. Page 338]

    that defendant apparently was intent upon looking for house numbers along the street and was not giving attention to the roadway in front of him.

No one saw the child in the cartway and it is contended on the part of the defendant that the circumstances demonstrate that the child must have suddenly darted out into the street in front of the automobile and that the defendant therefor is not liable. In the first trial a non-suit was entered in the present case for lack of eyewitness proof of the facts. And although later taken off (Cf. Reardon v. Smith, 298 Pa. 554, 148 A. 860) the case for recovery was close; the question of defendant's negligence was barely for the jury. Cf. Jones v. Carney, 375 Pa. 32, 99 A.2d 462; Murray, Admr. v. P.T.C., 359 Pa. 69, 70, 58 A.2d 323. But in the light of the verdicts defendant is chargeable with negligence in failing to observe the children and their movements on the sidewalk or in the street, and (under the circumstances) in failing to have his car under such control as to be able to stop on the shortest possible notice. Under the verdict we must take it that defendant should have observed the children on the sidewalk and accordingly should have anticipated that in their play they might run into the cartway. "Where there is reason to apprehend that children might run into a place of danger there is a duty imposed on an operator of an automobile to have his car under such control that it can be stopped on the shortest ...


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