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SCHWEGEL v. GOLDBERG (03/23/67)

decided: March 23, 1967.

SCHWEGEL
v.
GOLDBERG, APPELLANT



Appeals from judgments of Court of Common Pleas No. 8 (tried in Court of Common Pleas No. 10) of Philadelphia County, June T., 1964, No. 4527, in case of Jude Schwegel, as parent and natural guardian of William Schwegel, a minor, et al., v. Morton L. Goldberg.

COUNSEL

Albert B. Gerber, with him Gerber, Galfand & Berger, for appellant.

James Francis Lawler, with him Ostroff & Lawler, for appellee.

Ervin, P. J., Wright, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Watkins, J., absent). Opinion by Jacobs, J. Spaulding, J., would grant a new trial.

Author: Jacobs

[ 209 Pa. Super. Page 281]

The minor plaintiff, William Schwegel, was a pedestrian who was struck on Lippincott Street, in the City of Philadelphia, by an automobile driven by the defendant, Morton L. Goldberg. The father of the minor plaintiff brought suit on his own cause of action and that of his minor son, who, at the time of the accident,

[ 209 Pa. Super. Page 282]

    was four years and four months old. The defendant's motion for a compulsory non-suit at the end of the plaintiff's testimony was refused. The defendant did not testify on his own behalf nor did he present any witnesses and the jury awarded the minor plaintiff $7,500 and his father $236. Defendant's motions for judgment n.o.v. and for a new trial were denied and judgments were entered on the verdicts. The defendant now appeals to us. We affirm.

I. Judgment N.O.V.

In support of his request for judgment n.o.v. the appellant alleges that there was no evidence of negligence which warranted submitting the case to the jury. In considering this request we must keep several principles in mind. The evidence, together with all reasonable inferences therefrom, must be considered in the light most favorable to the verdict winner. Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822 (1963). In other words "we must accept the whole body of evidence in the strongest way it reasonably can be interpreted in support of the verdict and reject any evidence to the contrary." Geiger v. Schneyer, 398 Pa. 69, 71, 157 A.2d 56 (1959). No question of contributory negligence arises because a minor under the age of seven years is conclusively presumed to be incapable of negligence. Kuhns v. Brugger, 390 Pa. 331 at 340, 135 A.2d 395 (1957).

Viewed in this manner the evidence showed that the accident occurred at approximately noon on May 9, 1963 in front of No. 229 West Lippincott Street. Lippincott Street runs in an east to west direction and is a one way street which permits traffic to go west. The appellant's automobile was heading west in the middle of Lippincott Street. The minor plaintiff and four other children of tender age were playing on the pavement

[ 209 Pa. Super. Page 283]

    in front of No. 229 which is the fifth house east of American Street an intersecting street which dead ends Lippincott Street. Lippincott Street is 34 feet wide from curb to curb. Although there were cars parked on the north side of Lippincott Street no car was parked in front of No. 229 where the minor plaintiff and the other children were playing with a ball. The minor plaintiff failed to catch the ball at one point, went into the street after it, and was struck by the left front ...


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