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FURBY v. NOVAK (04/04/73)

decided: April 4, 1973.

FURBY, APPELLANT,
v.
NOVAK



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1971, No. 2718, in case of James Furby, a minor, by his parents and guardians, Marvin Furby and Ruby Furby, his wife, and Marvin Furby and Ruby Furby, his wife, in their own right v. Geraldine Novak.

COUNSEL

Herbert B. Lebovitz, with him Lebovitz & Lebovitz, for appellants.

Bruce R. Martin, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Hoffman, J. Spaulding and Cercone, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 224 Pa. Super. Page 44]

The six Judges who heard and decided this appeal being equally divided, the judgment is affirmed.

Disposition

Judgment affirmed.

[ 224 Pa. Super. Page 45]

Dissenting Opinion by Hoffman, J.:

Appellant contends that the lower court erred in its charge to the jury on the question of minor-appellant's contributory negligence. While the charge on the rebuttable presumption against the contributory negligence of a minor aged seven years and three months was substantially in compliance with the standards set forth in Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957), the failure of the lower court to charge on the rescue-emergency doctrine, as it relates to a plaintiff's contributory negligence, requires a reversal of the lower court's refusal to grant a new trial.

Briefly, the testimony in the lower court showed that appellant and a companion were walking home from school when, according to an eyewitness, a dog darted from an adjacent yard and chased the two boys. In an effort to escape, appellant ran into the street where he was struck by appellee's automobile, sustaining various injuries including the loss of one eye. Appellee stated that she saw neither the dog nor appellant. The eyewitness testified that when appellant ran into the street appellee's automobile was approximately fifty-five feet from the point of impact.

Appellant's theory of liability was that appellee was in such a position that, had she been exercising due care in the operation of her vehicle, she would have seen appellant and could have brought her car to stop thereby avoiding the accident. Jones v. Spidle, 213 Pa. Superior Ct. 81, 245 A.2d 677 (1968). This theory was especially applicable since the accident occurred in a posted school zone. Robb v. Miller, 372 Pa. 505, 94 A.2d 734 (1953). Appellee interposed the defense of contributory ...


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