The opinion of the court was delivered by: NEWCOMER
We have before us an action for damages brought under 42 U.S.C. § 1983 for the death of Gary Louis Phillips when he was fatally shot by Defendant John Ward. Both parties agreed to try the case before this Court without a jury.
In this opinion, we consider only the liability issue, and herein incorporate as required by F.R.C.P. 52(a), our findings of fact and conclusions of law on this issue.
The parties stipulated to the facts relevant to the liability issue. On July 2, 1973, at approximately 1:39 p.m., Defendant received a call from Cheltenham Township Police Headquarters concerning a suspicious car and individual reported in the area of 8233 Aspen Way, Cheltenham Township, by Mrs. John Abrahams.
Defendant thereupon went alone and in uniform to the home of Mrs. Abrahams, who told him of the suspicious activities of a white male in his early twenties, approximately 5feet8inch, with wavy brown hair, a sweat band on his right hand, and driving a vehicle described as a blue Ford, license no. 2F1-887.
Defendant reported this license number to headquarters, which reported to him a short time later that the vehicle belonged to Gary Phillips, plaintiff's decedent. Sergeant Robert Krauser, also patrolling the Cheltenham Township area that day, overheard the conversation between defendant and headquarters and reported to defendant that Gary Phillips, the suspect, was on a list of known burglary suspects. Sergeant Krauser also gave defendant a description of Gary Phillips.
Defendant then returned to Mrs. Abrahams' home and obtained again the description mentioned above of the suspicious individual, with the additional item of information that such individual observed by Mrs. Abrahams was wearing a sport shirt.
Defendant thereafter proceeded to 635 Greenbriar Road, one of two homes in whose vicinity Mrs. Abraham had seen Gary Phillips exhibit the suspicious behavior she had reported.
Defendant walked to the rear of the home, and entered the rear porch through its unlocked door. On the locked inner porch door, leading into the house, he found fresh pry marks.
At this point, defendant observed an individual standing roughly thirty to forty feet away, on the north side of the retaining wall, with his back to defendant. Defendant then proceeded further up the embankment, and noticed a television set and a stereo with speakers against the south side of the retaining wall.
As defendant drew nearer the person standing on the other side of the retaining wall, defendant noticed a sweat band on the person's wrist.
As defendant approached, this person suddenly turned his head, saw defendant, and began to run in a westerly direction. Defendant called, "Police, hold it" to the fleeing person, who ignored defendant's call and continued to run. Defendant then drew his.38 caliber police revolver, fired a warning shot, climbed over the retaining wall, and set out in pursuit of the suspect.
In the course of such pursuit, defendant came to a second wall and saw the suspect, who had leaped over the wall, getting to his feet. Defendant continued his pursuit, and fired a second warning shot into the ground, with the suspect approximately seventy-five to eighty feet from him. Defendant then yelled, "Police, stop or I'll shoot", but the suspect continued to run, and as he ran, with his back to defendant, raised his right hand across his body and into his shirt or belt area. Defendant, ...