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MOORE v. ZIMMERMAN (06/15/72)

decided: June 15, 1972.

MOORE, APPELLANT,
v.
ZIMMERMAN



Appeal from order of Court of Common Pleas of Bucks County, Dec. T., 1969, No. 1528, in case of Scott R. Moore, by his guardian, Robert O. Moore, and Robert O. Moore, individually and in his own right v. Charles R. Zimmerman and Doris Jean Zimmerman.

COUNSEL

Charles S. Wilson, with him Smith & Wilson, for appellant.

William B. Moyer, with him Power, Bowen & Valimont, for appellees.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J.

Author: Cercone

[ 221 Pa. Super. Page 360]

The minor plaintiff, Scott Moore, was struck while crossing a two-lane rural highway, Ridge Road, in East Rockhill Township, Bucks County, by an automobile driven by defendant Doris Zimmerman. The minor plaintiff sustained serious injuries for which he seeks recovery against the defendant. After all the pleadings, depositions, and answers to interrogatories were filed, the lower court granted defendants' motion for summary judgment under Pennsylvania Rule of Civil Procedure 1035. Plaintiff appeals to this court from the grant of that summary judgment contending that the record discloses genuine issues of material facts which can only be determined by a jury.

In determining whether or not such genuine issue as to any material fact exists, "the court must take that view of the evidence most favorable to the party against whom the motion is directed, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence, thereby placing the burden of proving the absence of any factual

[ 221 Pa. Super. Page 361]

    issue on the movant." Michigan Bank v. Steensen, 211 Pa. Superior Ct. 405, 406 (1967).

In the instant case an examination of the record with the aforementioned principle in mind persuades us that material facts are indeed in dispute and the order of the lower court entering the summary judgment in favor of defendant must be reversed.

The record shows that minor plaintiff sustained among other injuries, as a result of the accident, a retrograde amnesia which prevents his recall of the event. He remembered only that he was walking up through a wooded area listening to music on a portable radio he was carrying, emerging from the woods onto Ridge Road and having an unobstructed view of the road as he looked westwardly (the direction from which defendant was traveling). Defendant was the only witness able to testify concerning the accident itself. Her testimony disclosed that she was driving along Ridge Road in an easterly direction, having a clear view of the road for a couple of hundred feet on a bright sunlit day; that she first saw minor plaintiff in her lane of traffic when her automobile was 30-35 feet away from him; that at the time she saw minor plaintiff he was standing or walking toward the other side or northerly side of Ridge Road; that she was traveling at a speed of forty miles per hour in a fifty-five mile per hour zone (though the police report showed the area to be a forty-five mile per hour zone); that as minor plaintiff ran to reach the other or northerly side of the road, she drove her automobile across the centerline of the road into the westwardly lane of traffic and there struck minor plaintiff just as he was within two inches of having completely traversed the road. Defendant's deposition fails to give an explanation as to why she failed to see minor plaintiff in time to avoid striking him.

[ 221 Pa. Super. Page 362]

The minor plaintiff's mother testified on deposition that defendant had called her on the evening of the accident and stated that she had made a wrong turn in striking minor ...


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