Appeals, Nos. 223 and 235, Jan. T., 1959, from judgments of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1956, No. 6041, in case of Robert W. Geiger, administrator of estate of Kenneth R. Geiger, a minor, deceased v. Madeline Schneyer. Judgments affirmed; reargument refused January 25, 1960. Trespass for wrongful death and survival action. Before HAGAN, P.J. Verdict for plaintiffs in survival action in amount of $1900, and verdict for plaintiff in wrongful death action in amount of $23,100; defendant's motions for judgment n.o.v. and new trial dismissed and judgments entered on the verdicts. Defendant appealed.
Ralph S. Croskey, for appellant.
Morris Passon, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE MCBRIDE
In this case a minor six years of age was killed by an automobile driven by appellant who urges us to say that there was no evidence of her negligence. The jury found against her and the court below entered judgment on the verdict.
It may be that if we were free to draw our own independent conclusions a majority of this Court would say that a finding for defendant would be more reasonable. On this motion for judgment non obstante veredicto, however, such a question does not arise. We must accept the whole body of evidence in the strongest way it reasonably can be interpreted in support of the verdict and reject any evidence to the contrary. Also,
we must remember that the minor decedent was conclusively presumed to be incapable of being contributorily negligent. Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395; Van Buren v. Eberhard, 377 Pa. 22, 104 A.2d 98. Thus viewed, the jury reasonably could have found the following facts:
The defendant, Madeline Schneyer, was operating her automobile northwardly at a speed of 20 or 25 miles an hour on Easton Road, Glenside, at 3:30 p.m. on September 29, 1956. Easton Road is 40 feet 9 inches wide and is bisected by a white line. Her husband was a passenger in the car and there was no traffic immediately in front of her nor were there any vehicles parked along the road to obscure her view. There were two lanes on each side of the road and she was driving on the inside lane. As defendant arrived at a point at least two car lengths south of a driveway leading into some houses on her right side of the road, she saw plaintiff run from the driveway into the street. The child reached all the way across the northbound lane and was at least as far as the center line of the road when the defendant (who had turned her car in the same direction he was running) struck him with the left front of her car. When her car came to rest the right front and left rear of her automobile were on the white line which bisects the road and the left front of her car was about 3 feet over the center line. After she stopped the child was to the left and front of her car. It is conceded that the child died as the result of this accident. The whole matter was submitted to the jury in a fair charge to which no exception has been taken in this Court.
This is not a case where a person steps off a curb and is immediately struck. The physical facts on this state of the record demonstrated that this six year old child was in the unobscured view of the defendant ...