Appeal from judgment of Court of Common Pleas of Carbon County, Jan. T., 1971, No. 52, in re William Millen, administrator of the estate of Wyatt W. Millen, deceased v. Luella B. Miller.
Murray Mackson, with him Dower, Mackson, Hauff & Hettinger, for appellant.
Robert R. Reeder, with him William H. Bayer, and White and Williams, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, J., dissents.
[ 224 Pa. Super. Page 570]
In this appeal, we must decide whether the trial court erred in its charge to the jury and in failing to caution the jury against considering certain of defense counsel's remarks in closing argument.
The instant matter arises from a wrongful death and survival action instituted by the administrator of minor-decedent's estate. On April 30, 1970, between 8:30 and 9:00 p.m., plaintiff's decedent, Wyatt Millen, age 13, left his home to buy milk for the family. He walked in a westerly direction on the north side of Route 443 in Mahoning Township, Carbon County. There were no sidewalks on the side of the highway, but there was a dirt berm approximately eight feet wide. The climatological and highway conditions were disclosed as follows: the road was straight and level;
[ 224 Pa. Super. Page 571]
visibility good; weather clear and dry; and, no obstructions at the point of impact and extending in either direction for about one-half mile. At a point in the road, plaintiff's decedent was struck and killed by a motor vehicle traveling in the same direction as he had been walking.
The case was tried before a jury on January 27 and 28, 1971, the Honorable Albert H. Heimbach, President Judge, presiding. The jury returned a verdict for the defendant. Post-trial motions were denied, and this appeal followed.
At the trial, Chief of Police, Norman Mertz, who investigated the accident, testified that he arrived at the scene at about 9:20 p.m. and found the body of decedent on the berm with defendant's automobile parked two hundred feet west of decedent's body. Chief Mertz questioned defendant who stated that she did not see decedent walking in the road. He further stated that his physical examination of the vehicle revealed two dents in the area of the right front headlight that appeared to be recent.
Defendant, Luella Miller, was called as on cross-examination and admitted that the dents were not on the vehicle earlier during the day of the accident. The following transpired with regard to questioning as to the cause of the accident: "Q. And, as you approached the scene of this impact, you had your lights on low beam. Is that correct? A. Yes. Q. And, I believe also, was it not true, that there was some cars approaching you in the opposite or easterly direction? A. Yes. . . . Q. Now, is it not so, Miss Miller, that as you proceeded westwardly and approached this scene about two of those cars coming eastwardly passed you? A. Yes. Q. ...