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ZERNELL v. MILEY (03/16/65)

decided: March 16, 1965.

ZERNELL, APPELLANT,
v.
MILEY



Appeal from judgment of Court of Common Pleas of Delaware County, March T., 1962, No. 2585, in case of Marlin Zernell, a minor, by Charles Zernell and Elizabeth Zernell, his guardians, and Charles Zernell and Elizabeth Zernell, in their own right, v. Albert Miley.

COUNSEL

Avram G. Adler, with him Abraham E. Freedman, Richard L. Raymond, R. Stuart Jenkins, and Freedman, Borowsky and Lorry, and Schroeder, Jenkins and Raymond, for appellants.

Melvin G. Levy, with him Albert Blumberg, and McClenachan, Blumberg & Levy, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell dissents.

Author: Eagen

[ 417 Pa. Page 19]

This appeal questions the correctness of the lower court's entry of a judgment of compulsory non-suit in a personal injury action arising out of an automobile accident.

This is the factual background: Seventh Street is a two-way, paved public street, 27 feet in width, running east and west in the City of Chester. At the point involved herein, North Street runs into Seventh Street from the southerly side, forming a "T" intersection. About 8 feet to the east, North Street continues at a jog as an unimproved, dirt alley on the northerly side of Seventh Street. Buildings abut the alley on both sides, and the building line nearest Seventh Street is 12 feet from the curb thereof.

On a clear, dry afternoon, the defendant was operating an automobile in a westerly direction on Seventh Street (in the middle thereof), approaching the intersection before described. He was traveling at a speed of 25 miles per hour. At the time, the minor plaintiff, Marlin Zernell, aged seven years, was playing in the North Street alley with a young companion. The latter kicked a ball over Zernell's head and it traveled from the alley into Seventh Street. Zernell gave chase to retrieve it and ran from the alley into the roadway. As he was picking up the ball, he was hit by the right fender of the defendant's automobile. The impact drove Zernell a distance of from 10 to 15 feet, causing serious injuries. Defendant's automobile came to a stop 10 feet from the point of impact.

[ 417 Pa. Page 20]

The minor plaintiff, as a seven year old boy, is rebuttably presumed to be incapable of negligence; and this presumption can be overcome only by proof that he was of sufficient comprehension as to perceive the danger into which he placed himself: Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957). Furthermore, contributory negligence is declared as a matter of law only in very clear cases, and this is not such.

The sole question herein is whether or not the plaintiffs have supplied enough proof as to warrant the submission of the question of defendant's negligence to the jury. We think that they have, and therefore, the entry of a compulsory non-suit was erroneous.

The pertinent principles of law are clear. The duty of a motorist, when approaching a street intersection, is to be highly vigilant and to maintain such control that he can stop so as to avoid injury to a pedestrian on the shortest possible notice: Rutovitsky v. Magliocco, 394 Pa. 387, 147 A.2d 153 (1959), and Salkin v. James, 376 Pa. 205, 102 A.2d 168 (1954). And it is the presence of the intersection, not the position of someone therein, which determines the care required of the approaching drivers: Kane v. Scranton Transit Co., 372 Pa. 496, 94 A.2d 560 (1953), and Fidelity-Philadelphia Trust Co. v. Staats, 358 Pa. 344, 57 A.2d 830 (1948). This duty applies whether it is a dead-end intersection or a complete intersection: Fidelity-Philadelphia Trust Co. v. Staats, supra, and Atkinson v. Coskey, 354 Pa. 297, 47 A.2d 156 (1946).

If a child is in a place of danger on a public highway for sufficient time for the driver of an automobile, in the exercise of due care, to see him and stop his car, or otherwise avoid hitting him, the driver is guilty of negligence if he fails to do so: Berk v. LeQuin, 412 Pa. 88, 194 A.2d 136 (1963); Derr v. Rich, 331 Pa. 502, 200 A. 599 ...


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