Appeal from judgment of Court of Common Pleas of Lancaster County, Jan. T., 1966, No. 9, in case of Jeffrey J. Jones, a minor, by his parents and natural guardians, Robert E. Jones and Florence Jones, et al. v. Mary C. Spidle et al.
Daniel H. Shertzer, for appellant.
S. R. Zimmerman, with him Zimmerman, Zimmerman, Myers & Gibbel, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Montgomery, J. Wright, P. J., Watkins and Hannum, JJ., would affirm on the opinion of Wissler, P. J.
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Plaintiff Jeffrey J. Jones, a minor, by his parents and natural guardians, Robert E. Jones and Florence Jones, and in their own right, brought this action against Mary C. Spidle and Charles P. Spidle, partners, doing business as Spidle's Meat Market, and Kenneth L. Huhn, their employe, for injuries sustained by Jeffrey J. Jones, then three years of age, on January 6, 1963, when he was struck by a delivery truck of defendants Spidle and operated by defendant Huhn in Lancaster, Pennsylvania. At the close of plaintiffs' case as to negligence, the defendants moved for a compulsory non-suit, which was granted. A motion to remove this non-suit being overruled the plaintiffs take this appeal.
A compulsory non-suit may be entered only in a clear case, and only where there is no doubt as to the inference to be drawn from the evidence. Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965). When it is entered for lack of evidence to sustain the action it must be so clear that there is no room for fair and reasonable disagreement to it. Lasek v. Jaroschak, 192 Pa. Superior Ct. 350, 162 A.2d 25 (1960).
Viewing the evidence adduced on behalf of plaintiff as true; reading it in the light most favorable to him; giving him the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts, if any, in his favor as we are required to do in considering the entry of a compulsory non-suit, the following facts may be taken as established. This accident occurred on Fifth Street in the
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City of Lancaster, Pennsylvania, in a residential district. Fifth Street at the point of the accident is a two-lane street nineteen feet three inches wide and is designated as a one-way street with the right lane designated for parking and the left lane for travel.
The minor plaintiff, Jeffrey, three years old at the time, had been seen playing with his brother Robert, then five years old, on the left side of the street about ten to fifteen minutes before the accident in which Jeffrey was struck by the front of a Volkswagen truck traveling 20 to 25 miles per hour, operated by Kenneth L. Huhn, an employe of the other defendants who owned the truck. A dent on the truck indicated that the impact had occurred between the right headlight and the center emblem. The driver of the truck testified on cross-examination that he first saw the child inches to a foot in front of his truck, ". . . in fact the first time I saw him was when he was out in the street and he was about even with the right front of my truck. I immediately applied my brakes and I felt the front of the truck strike the child." The truck traveled 115 1/2 feet before stopping, during part of which distance the child was being carried underneath the truck, and left two skid marks on the street, one thirteen feet in length and the other ten feet three inches.
The pertinent principles of law are clear in this case. 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. Zernell v. Miley, 417 Pa. 17, 208 A.2d 264 (1965); Berk v. LeQuin, 412 Pa. 88, 194 A.2d 136 (1963); Derr v. ...