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July 19, 1962

James ROMER, an infant, by his next friend, John Romer, and John Romer and Mary Romer
Claude Rodgers BALDWIN and Smith's Transfer Corporation of Staunton, Virginia

The opinion of the court was delivered by: DUSEN

This case is before the court on plaintiffs' Motions to set aside the verdict and judgment entered thereon and to grant a new trial on both the questions of liability and damages, after the jury returned a special verdict for defendants on the issue of liability and, under the directions of the trial judge, made a special finding of damages for the plaintiffs in the amounts of $ 31,284.00 for Mr. and Mrs. John Romer and $ 16,700.00 for minor plaintiff, James Romer. *fn1"

The plaintiffs based their Complaint for personal injuries on the allegation that the individual defendant (Baldwin, who was acting for the corporate defendant) negligently drove a tractor-trailer motor vehicle (owned by the corporate defendant) against and over minor plaintiff, who was then crossing the highway at or near the intersection of Richmond Street and Castor Avenue, in Philadelphia, Pa., on October 8, 1958.


 The accident in question occurred near the intersection of Castor Avenue and Richmond Street in Philadelphia at about noon on October 8, 1958. Castor Avenue is a main traffic artery fifty feet wide and Richmond Street is also a heavily traveled highway thirty-four feet wide (Exhibit P-10). During the trial, it was considered that Richmond Street runs north and south and that Castor Avenue runs east and west. On the day of the accident, the weather was clear and the streets were dry.

 Minor plaintiff was one of a group of five boys, ranging from 5 to 12 years of age, who had been standing on the southwest corner of the intersection for about five minutes before the accident. The boys were talking over what they were going to do that day while they waited for the return of another boy, who was taking his bicycle home.

 Defendant Baldwin was completing a trip from Staunton, Virginia, to defendant Smith's terminal building located on the east side of Richmond Street, south of the intersection (Exhibit P-10, N.T. 137). Baldwin put his right turn signal on when he was about one-half block west of the intersection and he came to a stop on Castor Avenue for a red traffic light, with the front of his tractor-trailer about 28 or 29 feet west of the curb line of Richmond Street. Baldwin's truck had an overall length of 44 1/2 feet.

 As Baldwin's truck was in the process of making a right turn around the southwest corner from Castor Avenue so as to proceed south on Richmond Street, minor plaintiff was injured by a left, inside, rear wheel of the trailer when he ran out, in an easterly direction, into Richmond Street while looking in the direction of the northwest corner of the intersection.

  While he was stopped for the traffic light, Baldwin saw the group of boys on the southwest corner and he observed that they were milling around and playing together. When the light changed to green, Baldwin proceeded straight forward until the front of his tractor got to the center line of Richmond Street, a distance of 45 of 46 feet. During that forward movement, Baldwin watched the group of boys and none of them moved from the sidewalk. When he arrived at the center of Richmond Street, Baldwin continued to look at the boys and he observed that all of them were still standing on the sidewalk. Baldwin then turned his wheels to the right and proceeded into Richmond Street. As Baldwin made his turn, he continued to watch the boys out of the right window of his cab until he got either 'about even with them' or until he got 'about 10 feet past them.' None of the boys had left the sidewalk by the time Baldwin had arrived at this point in his turn. Immediately before he started the eastwardly movement which resulted in the accident, it was stipulated that minor plaintiff, if called to the stand, would have testified that he was standing just to the south of a traffic light standard on the southwest corner at a point so close to the light standard that he could have touched it with his left hand. *fn2" This traffic light standard is 8 feet 6 inches south of the south curb of Castor Avenue (Exhibit P-10). Baldwin's speed from the time he started up after the traffic light changed to green for Castor Avenue traffic until he stopped his vehicle after the accident did not exceed 5 or 6 m.p.h.

 Baldwin did not blow his horn at any point during his turn from Castor Avenue into Richmond Street. The noise from the diesel engine of his vehicle as he started his truck moving east on Castor Avenue was so loud that it could have been heard in front of Smith's terminal building, located over 200 feet south of the intersection.

 After the accident, minor plaintiff was found beneath the left, rear wheels of the trailer. The investigating police officer, who arrived on the scene a few minutes after the accident, found a blood spot which measured approximately 4 feet (north-south) by 8 inches (east-west) (N.T. 109). The center of this spot was 12 feet east of the west curb of Richmond Street and 18 feet south of the south curb of Castor Avenue.

 I. The record justifies the finding that the plaintiffs failed to prove that Baldwin was negligent.

 The record provides ample support for the jury's finding that Baldwin had exercised that degree of caution and prudence required of a driver properly mindful of the safety of children playing on the nearby sidewalk. The jury may well have considered and found that:

 (1) Baldwin maintained an adequate lookout, as evidenced by the fact that he kept the group of boys under constant observation as he rounded the corner;

 (2) Baldwin proceeded at a proper rate of speed, as evidenced by the fact that his speed was 5-6 m.p.h. at the time of the accident;

 (3) Baldwin did not have to stop in the center of Richmond Street before commencing to turn to the right;

 (4) Baldwin had his tractor-trailer under adequate control during this turn;

 (5) the children would not be affected by the movement, since they were playing and not waiting to cross the street at the time of the change in color of the traffic light; and

 (6) the noise involved in starting this loaded tractor-trailer from a stopped position at the light made any sounding of the horn unnecessary.

 Since the jury returned a verdict for defendants, plaintiffs have contended that the trial judge should have instructed the jury that Baldwin was negligent as a matter of law. This contention is rejected for these reasons:

 A. An instruction that Baldwin was negligent as a matter of law would have been error on this record.

 As pointed out above, the jury was justified in making the finding in (5) above. Under such circumstances, there was no violation of the following provision of the Pennsylvania Motor Vehicle Code (75 P.S. ┬ž 1012(a)) relied on by plaintiffs:

 '(a) The driver of any vehicle upon a highway, before starting, stopping or turning from a direct line, shall first see that such movement can be made in safety, and, if any pedestrian may be affected by such movement, shall give a clearly audible signal by sounding the horn, and whenever the operation of any other vehicle approaching or following may be affected by such movement, shall give a signal, as required in this section, plainly visible to the driver of such other vehicle of the intention to make such movement.' (Emphasis supplied.)

 The Pennsylvania courts have consistently indicated that this provision does not lay down a mandatory requirement that vehicle operators making a right-hand turn must sound their horns at all events, regardless of the circumstances confronting them on any given occasion. In Piper v. Adams Express Co., 270 Pa. 54, at pages 57-58, 113 A. 562, at page 564 (1921), the court said:

 'Section 13, of the Act of July 7, 1913 (P.L. 672, 679), provides that every operator of a motor vehicle shall give reasonable warning of his approach by horn, bell, or other signal 'whenever necessary to insure the safety of other users of the highways.' This provision is merely a statutory enactment of the duty imposed by the common law upon the driver of every such vehicle. Whether a necessity for signal exists in a particular case must depend upon the circumstances.'

 See, also, Greger v. Hollis, 61 Montg. Co. L.R. 77, 79 (1944).

 Plaintiffs' evidence indicates that:

 (1) Baldwin saw the children at the intersection as he stopped in Castor Avenue, waiting for the light to change;

 (2) none of the boys, including minor plaintiff, left the sidewalk at any time while Baldwin proceeded from his stopped position 45 or 46 feet in an easterly direction until he reached the center of Richmond Street; and

 (3) none of the boys left the sidewalk while Baldwin proceeded south on Richmond and until he reached a point where his body, sitting in the tractor, was 'about even' with the group of boys.

 Defendants' evidence indicates that Baldwin was south of the minor plaintiff when he ran out into the street. The evidence justifies the finding that Baldwin had no reason to suppose minor plaintiff might have been affected by Baldwin's movement around the corner. On this record, Baldwin had no duty to blow his horn under the precise set of circumstances which confronted him. Baldwin had no reason to suppose that any of the children would suddenly dart out into the street after his turn had virtually been completed.

 Silberstein v. Showell, Fryer & Co., 267 Pa. 298, 109 A. 701 (1920), relied on by plaintiff, regarding the anticipation by a driver of heedless, thoughtless and capricious acts of immature children, does not justify a ...

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