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SOUTH v. GRAY (03/27/73)

decided: March 27, 1973.

SOUTH, APPELLANT,
v.
GRAY



Appeal from order of Court of Common Pleas of McKean County, June T., 1971, No. 16, in case of Howard South on behalf of Roger L. South, a minor, and Howard South, in his own right v. Harry W. Gray and Gallagher Coal Co., Inc., a corporation and Darrell Slater, additional defendant.

COUNSEL

George B. Angell, with him Angell, Angell and Kahle, for appellant.

R. L. Mutzabaugh, with him Mutzabaugh & Mutzabaugh, for Gray and Gallagher Coal Co., Inc., appellees.

Murray R. Garber, for Slater, appellee.

Wright, P. J., Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. (Watkins, J., absent.) Opinion by Spaulding, J. Wright, P. J., would affirm on the opinion of Potter, P. J.

Author: Spaulding

[ 223 Pa. Super. Page 443]

Appellant Howard South appeals from an order of the Court of Common Pleas of McKean County refusing to remove a compulsory non-suit entered at the conclusion of appellant-plaintiff's case in this trespass action arising from an accident in which Roger South, his minor son, was struck by a tractor-trailer.

The accident occurred on East Main Street, a twolane highway in Bradford, on a snowy day in February, 1970. Roger, then 18 years old and a senior in high

[ 223 Pa. Super. Page 444]

    school, was standing at the foot of stairs which descended to the roadway from an adjacent hill. He was there for the admitted purpose of soliciting a ride.*fn1 There was no sidewalk on the side of the road where he stood -- i.e., none which ran along side the lane in which traffic moved in the direction Roger sought to travel. There was only the roadway met by a stone retaining wall, above which there was sheer hillside. On the other side of the road, adjacent to the lane proceeding in the opposite direction, there was a sidewalk.

After Roger arrived at the above position, several cars passed by without stopping and without his making any physical effort to "hitch" a ride. A car operated by appellee Slater then passed and, recognizing Roger as a former neighbor, Slater stopped the car about 20 yards down the road for the purpose of giving the lad a ride. Roger glanced to his left and observed the corporate appellee's tractor-trailer, operated by appellee Gray, approaching from a distance of 55 yards. He turned his back to the truck and proceeded at a "fast walk" on the slippery street toward the Slater vehicle, which was waiting for him. Since there was no sidewalk on that side of the road, he walked on the extreme right of the roadway surface on a ridge of snow piled immediately next to the retaining wall. After walking 10 to 15 yards, Roger heard the tires of the truck sliding on the slippery surface. He turned, saw the vehicle only a yard away, and was unsuccessful in jumping from its path.

[ 223 Pa. Super. Page 445]

The above facts were enumerated in appellant's case. After their presentation, the court below granted a compulsory non-suit, holding that Roger was negligent and that his negligence contributed to causing his injuries. Appellant challenges the ...


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