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MASTERS v. ALEXANDER (01/20/67)

decided: January 20, 1967.

MASTERS
v.
ALEXANDER, APPELLANT



Appeals from judgment of Court of Common Pleas No. 1 of Philadelphia County, March T., 1961, No. 1484, in case of Ronald D. Masters, a minor, by his father and natural guardian, Robert J. Masters, and Robert J. Masters in his own right v. Wade Alexander, Sr.

COUNSEL

Lynn L. Detweiler, with him Swartz, Campbell and Detweiler, for appellant.

David Cohen, with him Andrew F. Napoli, Daniel R. Sherzer, and Cohen and Verlin, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Chief Justice Bell, Mr. Justice Jones, Mr. Justice Eagen, Mr. Justice O'Brien and Mr. Justice Roberts concur in the result.

Author: Musmanno

[ 424 Pa. Page 66]

Ronald J. Masters, age 12 years and five months, was riding his bicycle at night on what is known as the "shoulder" of Bristol Pike, Bensalem Township, Bucks County, when he was struck by an automobile being driven by Wade Alexander, Sr., traveling in an opposite direction. The impact sent the boy flying through the air, hitting the automobile aerial and windshield, the violent contact with metal and glass inflicting skull fracture, optic nerve disablement, multiple facial scarring and other grave and permanent injuries. In the ensuing trespass action against Alexander, the jury returned a verdict in favor of the minor

[ 424 Pa. Page 67]

    plaintiff in the sum of $100,000 and $3,400 for the father. The defendant has appealed, asking for judgment n.o.v., or, in the alternative, a new trial.

Bristol Pike is 30 feet wide, divided down the center by a white line, thus assuring each lane of traffic a width of 15 feet. On either side of the highway runs a berm or shoulder 2 feet wide. The berm is not properly part of the highway and is intended, like the saucer to the cup, to be useful only when, in the event of a jar, jerk or other unexpected movement, the coffee spills or the automobile veers beyond its prescribed width of travel.

Ronald Masters was accompanied that night by his brother Robert who was riding a bicycle ahead of him. They were traveling on the southbound side of the road, that is, against the flow of traffic, but, as indicated, on the berm which permitted them to see all vehicles coming toward them. Robert saw the defendant's automobile approaching and drove off the berm, thus escaping collision. Ronald apparently was not quick enough to execute the same maneuver and was hit, while still on the berm. The defendant, being where normally he had no right to be, explained his presence on the berm by stating that a passing car threw its headlights into his eyes and this required him a "second" "to adjust to that." He testified that the boy on the bicycle did not come into his line of vision until he was 10 feet away from him. In a deposition made by him prior to trial he said he did not see the boy at all before the accident.

The defendant's explanation does not explain why he could not perceive the bicycle and its rider at a distance further away than 10 feet, or not at all. One of the defendant's witnesses, who was riding in a car behind the defendant, at a distance from defendant's car of about 100 feet, stated he had no difficulty in detecting the bicycle with its rider before the crash.

[ 424 Pa. Page 68]

It could well be that the defendant failed to note what was on the berm lining Bristol Road until he was practically on top of the bicycle occupying that berm, not for the reason advanced by him at the trial, but for a more cogent reason, namely, he could not clearly discern objects at night because of optical insufficiency. Two and a half months prior to the accident an ophthalmologist had rated vision in the defendant's right eye at 20/200 and at 20/100 in the left eye, as against 20/20 normal vision. Thus the defendant's right eye, the one closer to the berm on which Ronald was cycling, had about 80% deficiency in sight power and the left eye had 50% deficiency.

About six weeks after the accident the defendant underwent an operation for the removal of a cataract on his right eye. The eye examination which was made just before the operation revealed "both lenses are foggy and cloudy." The examining doctor said that, because of this condition, he could not see into the eye. It is only logical to conclude that if the doctor could not see into the eye, the patient could not see out of it.

Dr. Greenfield, who examined the defendant in September, 1960, said that Alexander's eyesight was practically just as bad two months before as then. The two-month period would, of course, include ...


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