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SIMMONS v. MULLEN (12/11/74)

decided: December 11, 1974.

SIMMONS
v.
MULLEN, APPELLANT ET AL.



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1972, No. 582, in case of Jean Simmons, a minor, by her parent and natural guardian, Charles L. Simmons v. Geraldine Mullen, John H. Etzel, and Peter Rauch Building Company, Inc., a Pennsylvania corporation.

COUNSEL

James R. Barozzini, with him Weis & Weis, for appellant.

James R. Duffy, with him Cosmos J. Reale, and McArdle, McLaughlin, Paletta & McVay, for appellees.

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

Author: Spaeth

[ 231 Pa. Super. Page 202]

This case arises from an accident in which appellee, Jean Simmons, a minor, was hit by an automobile driven by appellant, Geraldine Mullen. Originally there were several defendants but the jury returned a verdict only against appellant. The verdict was $25,000 for appellee and $549.60 for her father, to cover medical expenses. The issues are whether there was error in the charge, whether expert testimony was erroneously admitted, and whether the verdict was excessive.

The accident occurred on Pioneer Avenue in Pittsburgh at approximately 3:15 p.m. Pioneer Avenue runs north and south and has four lanes and abutting sidewalks. Appellee, aged seven years and seven months, was returning home from St. Pius Grade School. She was walking north from the school on the east sidewalk of Pioneer Avenue. A number of children were on both sides of the street. An open trench stretched across the sidewalk to the center of the street. Backhoe equipment blocked the sidewalk. Dirt from the excavation was in a pile, variously described by witnesses as three to six feet high, which extended from the east sidewalk to the center of the street. When appellee reached the excavation, she left the sidewalk and ran across the street toward the west sidewalk. She was within a foot or two of the opposite curb when

[ 231 Pa. Super. Page 203]

    she was struck by appellant's southbound car. Appellee's witnesses estimate the car's speed at 25 to 30 miles per hour.

Appellant, who resided in the general area, had driven through this section of Pioneer Avenue on other days at this time to attend her scheduled classes at Allegheny Community College. On those occasions she had observed school children on both sides of the street, but the sidewalk and street had not been blocked. Appellant testified that on the day of the accident she could not have been driving more than 15 miles per hour because she knew the area was a school zone. She explained further that she waited in front of the dirt pile to let some oncoming cars turn around her. She said she then proceeded forward at about 10 miles per hour and saw children on the right (west) sidewalk but not on the left side. Cross-examination revealed that she never looked to the left as she passed the dirt pile and therefore did not see appellee until appellee was directly in front of her right headlight.

The collision knocked appellee into the air and she landed unconscious. She was placed under the care of Dr. Gray and his associates at Mercy Hospital where she remained for five days. The diagnosis was "cerebral concussion and multiple contusions and abrasions." An electroencephalogram administered on June 10, 1970, was abnormal, but a repeat test in November registered a normal response. Dr. Gray found no demonstrable organic abnormalities thereafter. Continued complaints by appellee and her family, including alleged emotional changes, caused Dr. Gray to recommend psychological evaluation, and he referred appellee to Robert Romano, Ph.D., a clinical psychologist who, after conducting several interviews and a variety of psychometric tests, concluded that appellee had suffered minimal organic brain damage.

[ 231 Pa. Super. Page 204]

I

Appellant claims that the trial court erred in its charge to the jury. The contested portion of the charge is as follows: "There is also a rule of law that normally when a pedestrian is crossing between intersections, as crossing a street in the middle of a block, it must be shown that the pedestrian was in the highway and visible to the driver of an automobile for a sufficient length of time and far enough away so that the driver is able to bring his vehicle under control or to take other action to avoid striking the pedestrian. However, in the instant case, this rule is modified as to whether or not the surrounding circumstances of this case, the children coming home from school, the barricade on the highway should have apprised the driver, Defendant Mullen, on notice of possible pedestrians, i.e., children, darting into the street, and whether Defendant Mullen had her car under control as to meet the conditions of this particular street at this particular time. (Emphasis added.) Specifically, appellant argues that the charge was an incorrect statement of law because it placed on her the duty to anticipate children darting into the street. She submits that the charge should have been that an operator of a car is not responsible if a child suddenly runs from a place of safety into the path of the vehicle.

In some circumstances this claim would be correct. However, a driver's "duty is governed entirely by the circumstances" of the particular case. Purdy v. Hazeltine, 321 Pa. 459, 461, 184 A. 660, 661 (1936). Ordinarily an automobile driver is only negligent if the evidence shows that the child was on the highway and visible for a sufficient period of time to give the driver a reasonable opportunity to see him and to avoid an accident. Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963); Lucas v. Bushko, 314 Pa. 310, 171 A. 460

[ 231 Pa. Super. Page 205]

(1934); Cupelli v. Revtai, 218 Pa. Superior Ct. 277, 275 A.2d 673 (1971). A driver is therefore not required generally to anticipate a child's sudden dash into the path of his car. Jones v. Spidle, 213 Pa. Superior Ct. 81, 245 A.2d 677 (1968); Poulson v. Gamble, 197 Pa. Superior Ct. 300, 178 A.2d 839 (1962). If at a given place, however, there is something to warn the driver that he should expect such heedless acts, it becomes his duty to exercise a higher degree of care than under ordinary circumstances. Geiger v. Schneyer, 398 Pa. 69, 157 A.2d 56 (1959); Ondrusek v. Zahn, 356 Pa. 537, 52 A.2d 461 (1947); Purdy v. Hazeltine, supra.

Here, appellant was proceeding through an elementary school zone when school was dismissed. She knew that school was dismissed at this time and that when it was, children used both sides of the street, and she saw that children were in fact present. Moreover, she had noticed that the east sidewalk was blocked by construction equipment and the pile of dirt. The law has recognized that special care is required for the protection of children who congregate in the vicinity of a schoolhouse. Stevenson v. Sarfert, 310 Pa. 458, 165 A. 225 (1933); Mulhern v. Phila. Homemade Bread Co., 257 Pa. 22, 101 A. 74 (1917). The tendency of small children to dart across streets near schools cannot be ignored by drivers. Rankin v. Ward Baking Co., 272 Pa. 108, 116 A. 58 (1922). Further, the obstructions here meant that the children had reason to leave the sidewalk and that appellant's scope of vision must have been limited. These circumstances should have warned appellant to expect heedless acts of children, and it thereby became her duty to exercise a higher degree of care than under ordinary circumstances.

In Robb v. Miller, 372 Pa. 505, 94 A.2d 734 (1953), a five year old boy ran into the street in front of his school from between ...


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