Appeals, Nos. 149 and 150, Jan. T., 1961, from judgments of Court of Common Pleas of Wayne County, April T., 1958, No. 133, in case of Alviena Patton, by Rendell Patton, her guardian et al. v. Charles Franc. Judgments reversed.
Milford J. Meyer, for appellants.
James Rutherford, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
Alviena Patton, ten years of age, was grievously injured when her sled was struck by an automobile operated by Charles Franc in Honesdale, Wayne County on January 18, 1958. Through her father Rendell Patton (who joined her as plaintiff in his own right) she brought a suit in trespass against Franc. At the ensuing trial the jury returned a verdict for the defendant. Upon the refusal of the trial court to grant a new trial, the plaintiffs appealed.
The main factual issue in the case was whether, as the defendant contended, the child rode her sled down a hill into Ridge Street, crossing it and running into the rear left side of his car which was proceeding northwardly on that street, or whether, as the plaintiffs maintain, the defendant came over to his wrong or left side of the highway and struck the child as she sat on her sled on the sidewalk on the west side of Ridge Street. The only eyewitness to the accident aside from the injured child and the defendant, was a thirteen-year-old girl Marilyn Smith. The defendant argues in this appeal that Marilyn Smith unequivocally testified that Alviena on her sled "came down the driveway, entered the street without stopping, and came into collision with the rear portion of defendant's car at a point just in front of the rear wheel."
The trial judge was also of this view and instructed the jury: "If you believe that the accident happened in the manner testified to by Marilyn Smith, then your verdict must be for the defendant."
It is a rare case where the court can direct the jury to found its verdict on the testimony of one witness, regardless of the other evidence in the case. This is certainly not that case. Marilyn's testimony was not so mathematically certain and not so devoid of blemish, contradiction or ambiguity that the jury could sit in the sleigh of her recollection and ride with conscientious
assurance to an impeccable verdict. As a matter of fact, there were many contradictions and flaws in her testimony.
Did Alviena's sled traverse Ridge Street from the west to the east side and run into the defendant's car on the east side, or did Franc drive over to the west side and run over Alviena's sled with her on it? Alviena testified that she was coasting down the hill on a driveway which exited into Ridge Street. Half way down the hill, her little brother, who was sitting behind her on the sled, jumped off and she continued on to the sidewalk, on ...