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BERK v. LEQUIN. (10/09/63)

October 9, 1963

BERK, APPELLANT,
v.
LEQUIN.



Appeal, No. 148, Jan. T., 1963, from judgments of Court of Common Pleas No. 3 of Philadelphia County, June T., 1958, No. 3747, in case of Todd Berk, a minor, by his guardian Gabriel Berk, and Gabriel Berk and Phyllis Berk in their own rights, v. Lillian L. LeQuin. Judgments reversed.

COUNSEL

Milford J. Meyer, with him Meyer, Lasch, Hankin & Poul, for appellants.

James J. McEldrew, with him Elston C. Cole, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Musmanno

[ 412 Pa. Page 89]

OPINION BY MR. JUSTICE MUSMANNO

Todd Berk, two and a half years of age, decided around noontime on November 22, 1957, to take a walk by himself. He entered upon Andrews Avenue (Philadelphia), heading westwardly. When he got to Ogontz Avenue, which intersects Andrews, he stopped, since Ogontz Avenue is a wide thoroughfare, accommodating two street car tracks and space for double lane automobile traffic on either side of the car tracks. He watched a woman with a go-cart, two children, and a dog cross Ogontz and then he ventured forth. When he reached the second traffic lane, his solitary jaunt was violently terminated by an automobile being driven by Mrs. Lillian L. LeQuin which struck him with such

[ 412 Pa. Page 90]

    force that, according to one witness, he "bounced up on the hood and bounced down."

A lawsuit followed and the jury returned a verdict in favor of the motorist defendant. The plaintiffs, the child and his parents, moved for a new trial which was refused, and an appeal to this Court followed.

The plaintiffs contend that they are entitled to a new trial because the judge improperly instructed the jury. The principal factual question at the trial was whether the child darted out into Ogontz Avenue or whether he proceeded to cross it at a normal gait. One witness, Arthur Ebischbach, testified that he saw the woman and two children cross ahead of Todd. He described the dog, which also made the crossing, as walking "casually." Todd, he said, hesitated at the curb for 30 seconds and then moved "leisurely" into Ogontz and his unintended flight over the automobile's hood.

Another witness, Eugene Pflaumer, testified that the child stopped at the curb, "hesitated" and then proceeded into the street. He ...


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