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FLANK v. WALDER (01/18/60)

January 18, 1960

FLANK
v.
WALDER, APPELLANT.



Appeals, Nos. 180 and 181, Jan. T., 1959, from judgments of Court of Common Pleas No. 5 of Philadelphia County, March T., 1956, No. 9742, in case of Howard M. Flank, a minor, by his guardian, Bernard Flank et al. v. Walter Walker et al. Judgments affirmed. Trespass for personal injuries and property damage. Before DOTY, J. Verdicts for parent plaintiffs in amount of $926.15, and for minor plaintiff in amount of $10,000; defendant's motions for new trial and for judgment non obstante veredicto overruled and judgments entered on the verdicts. Defendant appealed.

COUNSEL

Harold M. Kominars, with him Henry Temin and Max E. Cohen, for defendant, appellant.

Arthur M. Harrison, with him Bernstein & Bernstein, for plaintiffs, appellees.

Richard J. van Roden, with him Pepper, Bodine, Frick, Scheetz & Hamilton, for additional defendant, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Musmanno

[ 398 Pa. Page 167]

OPINION BY MR. JUSTICE MUSMANNO

On February 19, 1956, in Philadelphia, Howard M. Flank, a child two years of age, was seriously injured when the car in which he was riding with his father, mother and sister, collided with a car owned and operated by Walter Walker. His father, Bernard Flank, driving westwardly on Girard Avenue, had stopped for a red light at the 40th Street intersection and when the light changed to green, he thrust his left arm out the window to signal his intention of turning to the left into 40th Street. He noted an automobile travelling eastwardly on Girard Avenue some 150 to 175 feet away and, assuming he had "plenty of time" to negotiate the turn before the arrival of the distant car, he accordingly made the turn and proceeded south on 40th Street. However, when he reached a point a "couple of feet" away from the curb line on the south side of Girard Avenue, he was struck by the Walker car. Howard Flank suffered serious injuries and, through his parents, brought suit against Walter Walker who brought in Bernard Flank as additional defendant. The jury returned a verdict in favor of the child in the sum of $10,000 and in favor of the parents in the sum of

[ 398 Pa. Page 168]

$926.15. It absolved Bernard Flank as additional defendant.

The defendant appeals, asking that the judgment in favor of the Flank parents be reversed on the basis that Bernard Falnk was negligent and that a new trial be awarded in the boy's case on the basis that the verdict was excessive.

The defendant says in his brief filed in this Court: "The additional defendant [Bernard Flank] patently violated the duty of care required by a motorist in making a left hand turn, to observe the approach of other cars across whose path the turning car will go. The duty of care requires the giving of a signal (the type of signal that gives adequate notice to the car coming in the opposite direction, whether it be by hand signal or by left turn lights) and an observation by the left turning vehicle immediately prior to crossing the path of the oncoming car."

But Bernard Flank did all these things which the defendant enumerates. He observed the approach of the car, he gave a signal and he made an observation prior to making the turn. The defendant uses the phrase "immediately prior to crossing the path of the oncoming car." Obviously this kind of an observation, unless preceded by an anticipatory look, can not avert an impending collision. If a motorist does not look until just before he crosses the path of the oncoming car it may be too late for him to do anything to prevent an impact with that car. Moreover, the turning motorist has a responsibility toward cars and persons directly ahead of him. If, as in this case, a motorist sees another car 150 to 175 feet away traveling at the rate of 20 to 25 miles per ...


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