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ROST v. WICKENHEISER (06/21/74)

decided: June 21, 1974.

ROST, APPELLANT,
v.
WICKENHEISER



Appeal from judgment of Court of Common Pleas of Lancaster County, Oct. T., 1971, No. 13, in case of Agnes Pearl Rost, Executrix of the Estate of William A. Rost, Deceased v. Anthony J. Wickenheiser, Jr.

COUNSEL

John W. Beyer, with him Robert H. Reese, Jr., John L. Sampson, William W. Stainton, and Arnold, Bricker, Beyer & Barnes, for appellant.

Christopher S. Underhill, with him Windolph, Burkholder & Hartman, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 229 Pa. Super. Page 86]

The appellant in the present case, Agnes Pearl Rost, instituted her action in trespass against Anthony J. Wickenheiser, Jr., claiming the negligent killing of her husband, William Rost. Upon trial, the jury returned a verdict for the defendant and the plaintiff filed motions for judgment non obstante veredicto and for a new trial. These motions were dismissed by the court en

[ 229 Pa. Super. Page 87]

    banc, and this appeal was taken. We find that since the question of negligence was properly submitted to the jury pursuant to correct instructions by the trial judge, the court below correctly allowed the verdict to stand and refused to grant a new trial.

On the night of the accident the decedent and defendant were both visiting at the home of Mr. Walker, a neighbor of the Rost's. The decedent left at about 11:00 p.m. to walk next door to his own house. The defendant and Mr. Walker left moments later and approached the defendant's car, which was parked on the left side of the street, from the rear. The night was dark, the street poorly lighted and shaded by foliage, and neither the defendant nor Mr. Walker observed anything unusual in the vicinity of the car, although they did not look in front of the vehicle. Upon entering the car, the defendant turned on his lights, looked ahead through his windshield, and proceeded to move away from the curb into the street. Almost immediately, he became aware of what he described as a drag on the wheels of his car. He accelerated a little, but the drag continued to interfere with his forward motion. Believing he had come into contact with a plastic trash bag, he put his car into reverse, again felt the drag on his wheels, then backed far enough for his headlight to illuminate Mr. Rost's mangled body lying in the street. By the time the ambulance arrived, Mr. Rost was dead from the injuries sustained when he was run over by the defendant's car. How he came to be under the wheels of that vehicle is now a matter of speculation.

In support of her motion for judgment n.o.v., the appellant contends that the defendant had an affirmative duty to inspect the area in front of his car which he could not see when seated inside. According to the appellant, his admitted failure to perform this investigation should result in a judgment in her favor as a

[ 229 Pa. Super. Page 88]

    matter of law. The authority upon which appellant bases this proposition is Hahn v. Anderson, 326 Pa. 463, 192 A. 489 (1937). In that case, the plaintiff recovered damages from a defendant who had struck a child who was seated on the sidewalk in front of the defendant's car, out of his line of vision. However, not only were the circumstances of that accident materially different from those of the present case, in that the driver there could have expected pedestrians of all sizes to be lawfully using the sidewalk in front of his car, but also the court explicitly stated that: "[t]he fact that the accident in question took place on a sidewalk makes the question of defendant Anderson's negligence one for the jury." Hahn v. Anderson, supra at 466-67, 192 A. at 490. Therefore, even where a pedestrian is struck on a sidewalk in the daytime, a defendant's failure to go around to look in front of his car before proceeding across is not negligence as a matter of law but a question properly submitted to the jury.

Appellant, however, argues further that the logic of the Hahn case as supported by other cases, holding the defendant liable for damages to those he should have seen but failed to see,*fn1 compels the conclusion that the defendant was negligent as a matter of law for failing to perceive the decedent in front of his car. Kmetz v. Lochiatto, 421 Pa. 363, 219 A.2d 588 (1966), eloquently states the rule that where the evidence shows the pedestrian was within the driver's line of vision, the driver's failure to see him is negligence per se. The fact that the driver ...


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