Appeal, No. 222, March T., 1958, from judgment of Court of Common Pleas of Beaver County, Sept. T., 1955, No. 274, in case of Ernest G. Tuttle, administrator of the estate of Kenneth Tuttle, deceased v. Andrew A. Suznevich. Judgment affirmed.
Charles McC. Barrickman, with him Wallover & Barrickman, for appellant.
Theodore A. Tenor, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
Kenneth Tuttle, a child six years of age, was killed by an automobile owned and operated by Andrew A.
Suznevich. The boy's father, Ernest G. Tuttle, as administrator of the estate of the deceased, brought Wrongful Death and Survival actions against Suznevich. The jury returned a verdict of $10,000 in the death action and found for the defendant in the survival action. The defendant asks for judgment n.o.v. or a new trial.
On the morning of April 30, 1955, Ernest Tuttle was standing on the lawn of his neighbor, Shirden Cline, talking with him about a lawn mower with which they had been experimenting. The Cline property, located in Ohio Township, Beaver County, fronted on the east side of the Smith's Ferry Hill Road (also known as Route 278), which is some 18 feet wide, bare of sidewalks, and flanked on either side by a berm 5 feet wide. That morning, at about 11 o'clock, Ernest Tuttle saw the defendant, Andrew Suznevich, proceeding northwardly on the Smith's Ferry Hill Road, at the rate of from 30 to 35 miles an hour. At the moment of first vision Suznevich was about 79 feet away. Suznevich looked over at Tuttle as he drove by. A moment later Tuttle saw his little boy standing on the road, 18 inches within its outer edge on the margin of and adjacent to the driveway leading from the Cline property. In the next instant he saw the bumper of the automobile strike the child and the front and rear wheels pass over him. The body was carried or dragged for some 15 feet and the car traveled about 75 feet before it stopped. Suznevich then got out of the car, remarked to Mr. Tuttle that he thought he had run over a dog, and drove away. Later he returned and explained that he had left because he had been frightened by what he saw.
In his appeal to this Court Suznevich denies responsibility for Kenneth Tuttle's death because, he says, the plaintiff "has failed to show how the accident
happened." "The whole record," he asserts, "is devoid of testimony as to any basic facts absolutely essential for the determination of liability." But Suznevich's own testimony reveals how the accident happened. He testified "Q. How far does the Tuttle home sit back from the westerly portion of the road? A. About sixty-five feet. Q. Sixty-five feet? Will you tell the Court and jury, just in your own words, what happened as you came along that highway? A. Well, as I was traveling this road, the road - the day was clear and the road was dry, and I had traveled this road before, and when I felt that thump on my car - the back wheel - I knew I hit - Q. Where were you when you felt the thump on your car? A. Almost directly in front of Mr. Cline's home. Q. Would that be approximately where it has been testified as to where the impact took place? A. That's right. Q. And after you heard the thump, what else did you notice? You spoke about the wheel of your automobile? A. Yes, ...