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DE LIO ET AL. v. HAMILTON (06/14/73)

decided: June 14, 1973.

DE LIO ET AL., APPELLANTS,
v.
HAMILTON



Appeal from order of Court of Common Pleas of Delaware County, No. 6371 of 1967, in re Joseph M. De Lio, a minor, by his guardians and parents, Joseph P. De Lio and Louise De Lio and Joseph P. De Lio and Louise De Lio, individually and in their own rights v. Richard M. Hamilton.

COUNSEL

Mary Alice Duffy, for appellants.

Andrew J. Forbes, with him Cramp, D'Iorio, McConchie and Surrick, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Watkins, J. Hoffman, J., concurs in the result.

Author: Watkins

[ 227 Pa. Super. Page 582]

This is an appeal by the plaintiff-appellants, Joseph M. DeLio, a minor, by his guardians and parents, Joseph P. DeLio and Louise DeLio, from an order of the Court of Common Pleas of Delaware County denying a motion to take off a non-suit granted by the court below.

The minor plaintiff was born May 19, 1961, and the action in trespass was brought by his parents to recover damages for injuries sustained by the minor when he was struck by an automobile in Glenolden, Delaware

[ 227 Pa. Super. Page 583]

County, Pennsylvania, on May 28, 1965. At the time of the accident, the minor was four (4) years of age.

The trial began on January 31, 1972, almost seven (7) years after the accident and when the minor was ten (10) years of age. At the close of the plaintiffs' case, a compulsory non-suit was granted by the court below on the ground of failure to make out a prima facie case of negligence. The motion to take off the non-suit was denied and this appeal followed.

The rule is well settled that in order to grant a non-suit the evidence must be read in the light most favorable to the plaintiff. A non-suit can only be awarded in a clear case and the plaintiffs must be given the benefit of all favorable evidence and all reasonable inferences therefrom and all conflicts must be resolved in favor of the plaintiff. Schofield v. King, 388 Pa. 132, 130 A.2d 93 (1957). This case also held that it is equally clear that the mere happening of an accident is not proof of negligence.

At trial the father of the minor stated that his son had asked him for money to buy ice cream from a truck whose bell was announcing its presence in the area. The conversation took place in the living room of the home. The boy left and shortly thereafter the father testified that he heard the screech of brakes. He went out to investigate and saw the ice cream truck parked on the opposite side of the street from his home. It was parked in the space between two driveways. The driveways provide a means of ingress and egress to garages located behind certain homes. The defendant-driver resided in one of those homes serviced by one of the said driveways. The father saw his son being picked up from the road by a neighbor from a position in front of the defendant's automobile.

The defendant's automobile was turned in a direction toward the driveway which served his garage. The occurrence described ...


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