Appeals, Nos. 17 and 18, March T., 1958, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1954, No. 1336, in case of Robert W. Gift, a minor, et al. v. John A. Palmer. Judgment affirmed.
Daniel B. Winters, with him Arthur G. Stein, for appellant.
Frederick N. Egler, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff Robert Gift sued defendant in trespass for personal injuries. The lower Court entered a non-suit. A non-suit can only be awarded in a clear case, and plaintiff must be given the benefit of all the evidence in his favor and all reasonable inferences therefrom: Finnin v. Neubert, 378 Pa. 40, 105 A.2d 77; Schofield v. King, 388 Pa. 132, 130 A.2d 93.
The evidence is very meager. Defendant was driving east along Mt. Oliver Street in Pittsburgh. There was no direct evidence of how the accident (which happened in the middle of the block) occurred. Five minutes before the accident, Mrs. Jesse (a neighbor), who was a block away, saw Robert Gift, aged 3, and his sister Jeanne sitting on their front doorstep playing with two little girls.
Robert's mother testified that a couple of days after the accident, defendant came to see her and said that he told her "coming up our street he said that he felt something hit his front bumper and he had thought it was a stone and kept going until he looked in his rear view mirror and he saw my son lying in the street .... Then he stopped and picked him up." The day was clear, the street was 30 feet wide with trolley tracks in the middle, and no cars were parked on the south side.
Although the law is clearly settled by countless cases, it seems necessary for us to repeat certain well established pertinent principles. A child three years
old cannot be guilty of contributory negligence: Van Buren v. Eberhard, 377 Pa. 22, 25, 104 A.2d 98. The mere happening of an accident is not evidence of negligence. Plaintiff must prove by a fair preponderance of the evidence that the defendant was negligent and that his negligence was the proximate cause of the accident: Karcesky v. Laria, 382 Pa. 227, 230, 114 A.2d 150; Fries v. Ritter, 381 Pa. 470, 473, 112 A.2d 189; Finnin v. Neubert, 378 Pa. 40, 43, 105 A.2d 77; Brusis v. Henkels, 376 Pa. 226, 102 A.2d 146. Negligence is the want of due care which a reasonable man would exercise under the circumstances: Finnin v. Neubert, 378 Pa. 40, 44, supra; Lanni v. PRR, 371 Pa. 106, 109, 88 A.2d 887; Brusis v. Henkels, 376 Pa. supra; Maternia v. PRR, 358 Pa. 149, 56 A.2d 233. Conduct is negligent only if the harmful consequences thereof could reasonably have been foreseen and prevented by the exercise of reasonable care: Finnin v. Neubert, 378 Pa., supra; Brusis v. Henkels, 376 Pa. 226, 230; Helm v. South Penn Oil Co., 382 Pa. 437, 441, 442, 114 A.2d 909; Ebersole v. Beistline, 368 Pa. 12, 82 A.2d 11; Reckey v. Ernest, 367 Pa. 538, 541, 80 A.2d 783.
Ebersole v. Beistline, 368 Pa., supra, and Finnin v. Neubert, 378 Pa., supra, are factually analogous to and in principle directly rule the instant case. In Ebersole v. Beistline, defendant drove his automobile 35 miles an hour through city streets in broad daylight, and ran into the rear of a bicycle and killed the nine year old boy who was ...