Appeals, Nos. 194 and 195, April T., 1960, from judgment of Court of Common Pleas of Allegheny County, April T., 1957, No. 135, in case of Mark Graham, a minor, by Harry Graham, his guardian, et al. v. Robert Sieger et ux. Judgment affirmed.
Kenneth W. Behrend, with him Richard C. McHugh, for appellants.
Robert S. Grigsby, with him Pringle, Bredin & Martin, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 196 Pa. Super. Page 623]
OPINION BY MONTGOMERY, J.
This is an appeal from a judgment of compulsory non-suit in an action of trespass, occurring out of personal injuries sustained by the minor appellant Mark
[ 196 Pa. Super. Page 624]
Graham, on September 16, 1956 at about 7:00 P.M., when he, a pedestrian, was struck by the automobile operated by the appellee Madeline Sieger, in the 200 block of Rustic Avenue, Mt. Oliver, Pennsylvania.
Suit was instituted on behalf of the injured minor by his guardian, and also by the minor's father in his own right, against the driver and her husband, Robert Sieger. During the subsequent jury trial, at the conclusion of the plaintiffs' (appellants') case, the lower court gave a judgment of compulsory non-suit as to both defendants on motion of counsel. A motion to remove the compulsory non-suit was filed and argued before the court en banc, which refused the motion.
At the trial the appellants developed that immediately before the accident, Mark Graham, then age four, was playing among a group of children in front of the residence of Edwin A. Comfort, which is on the north side of Rustic Avenue, a three lane throughfare running generally east and west. Mrs. Sieger turned west onto Rustic Avenue below the scene of the accident and proceeded at about 15 miles per hour. At a disputed point between the houses known as 202 and 208 Rustic Avenue, Mark Graham stepped out from the north curb heading in a southerly direction and commenced to cross the street, when he was struck by the right front of Mrs. Sieger's automobile. When the vehicle and the youngster came to rest, Mark Graham was lying about two feet west of the extreme right front side of the Sieger vehicle.
Mrs. Sieger testified that she was on a mission of her own to shop for her daughter, and she stated that Robert Sieger, her husband, had not requested or ordered her to do anything for him. Appellants have not contradicted that testimony and are bound by it, and there is therefore no proof at all upon which to ...