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MOUNT ET AL. v. BULIFANT (04/22/70)

decided: April 22, 1970.


Appeals from judgments of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, No. 2915, and June T., 1966, No. 3455, in cases of Louis and Rita Mount, as parents and natural guardians of Ronald Mount, a minor et al. v. Walton Bulifant, trading as M. Bulifant; and Same v. Walton Bulifant.


Frederick D. Duden, Jr., with him Duden & Galbally, for appellant.

Joseph G. Manta, with him James M. Marsh, and LaBrum & Doak, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen concurs in the result. Mr. Justice Eagen and Mr. Justice Roberts dissent.

Author: Pomeroy

[ 438 Pa. Page 267]

An eight year old boy jumped or fell from the passenger-side running board of a slowly moving tractor-truck (operating without a trailer) and was severely injured by the right rear wheels. Actions in trespass were brought by the boy's parents on his behalf and in their own right against the truck driver and the owner

[ 438 Pa. Page 268]

    of the truck. The actions were consolidated for trial, and verdicts in favor of the defendants were returned in each case. From the judgments entered on the verdicts, these appeals were taken. Appellants' principal assignment of error pertains to the trial court's charge on the subjects of negligence and contributory negligence. Error is also alleged in the sustaining of an objection to questions put to the minor plaintiff on direct examination.

Plaintiffs' case on liability was based on the testimony of the injured boy and his older brother, while the defendants relied on the testimony of the defendant driver and a third party eyewitness to the accident. The conflicting theories of the parties are summarized by the court below in its opinion: "Plaintiffs' version of the case was that the minor plaintiff had been sitting on the running board and was trapped there when the truck suddenly started to move; that his older brother jumped on the running board to assist him; that thereafter both of them were standing on the running board; that the driver knew or should have known of their presence; and that both brothers fell off the running board (the older brother first) when the truck hit a bump, the minor plaintiff sustaining serious injuries. Plaintiffs contended that the defendant driver was either negligent or guilty of wanton and wilful misconduct. The defense was that minor plaintiff was a trespasser on the tractor (having been twice chased away from the tractor shortly before the accident); that both the minor plaintiff and his brother were sitting rather than standing on the running board; that the driver neither knew nor had reason to know of their presence; and that the minor plaintiff (as well as his brother) jumped from the running board while the truck was in motion. Defendants denied any negligence or wanton and wilful misconduct, and asserted the contributory negligence of the minor plaintiff."

[ 438 Pa. Page 269]

Thus, the case presented the factual question of whether or not the minor plaintiff was a trespasser and the legal question of the standard of care owed to him (a) if he were on the tractor by permission, and (b) if he were a trespasser. Also involved was the factual and legal question of the contributory negligence of an eight year old minor.

Appellants concede that if the minor were a trespasser, defendants would be liable only if their conduct was willful or wanton, i.e., either intentional or in reckless disregard of the safety of the minor. They take issue, however, with the court's charge as to willful or wanton misconduct. Specifically, they state that although the law does not require actual knowledge of a trespasser's presence to render an actor guilty of wanton misconduct, Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A.2d 440 (1965), certain portions of the charge would indicate the contrary, and so were prejudicially erroneous.

We find no error in the charge concerning willful and wanton misconduct. In charging the jury, the trial judge first defined wanton misconduct and willful misconduct. He then instructed: "If you find that the driver did not know or have reason to know that anyone was on the tractor running board, then and in such case, it seems clear from the evidence that there was no willful or wanton misconduct driving of the vehicle, and under such circumstances your verdict ...

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