No. 440 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Somerset County, Pennsylvania, at No. 150 Civil 1976, Civil Action-Law
James B. Yelovich, Somerset, for appellant.
Eugene E. Fike, II, Somerset, for appellees.
Van der Voort, Spaeth and Montgomery, JJ.
This is an action in trespass which arose as a result of a truck-pedestrian accident that occurred on September 5, 1974 on Legislative Route 601, Boswell Borough, Somerset County, Pennsylvania. The defendant-appellant, Jeffrey L. Gibson, was the operator of a pick-up truck owned by
defendant, T. H. Nelson, which struck and injured four-year-old Michael Lee Lamb who was crossing the road, resulting in serious injuries and substantial medical expense. Trespass actions were brought by his parents on behalf of the minor boy and themselves against Jeffrey L. Gibson and T. H. Nelson. Subsequently, upon stipulation of the parties, the Court granted Nelson's Motion for Summary Judgment on August 4, 1977.
The case was tried before a jury in the Court of Common Pleas of Somerset County on September 12, 13, 14 and 15, 1977, Judge Norman A. Shaulis presiding. The jury returned a verdict in favor of the defendant-appellant, Jeffrey L. Gibson, in these words: "We find the defendant, Jeffrey Gibson, not guilty to the charge of negligence." The appellees moved for judgment n. o. v. or a new trial. The trial judge, with the concurrence of President Judge Coffroth, filed an Opinion and entered an Order dated November 29, 1977, denying the motion for judgment n. o. v., but granting the motion for a new trial. The defendant-appellant, Gibson, has appealed from the Order granting a new trial.
The accident out of which this litigation arose occurred on September 5, 1974 at about 3:30 p.m. The weather was clear and visibility was normal. The appellant was operating a 1973 model Ford pick-up truck in a northerly direction on Route 601 in Boswell Borough, Somerset County. Route 601 is a two lane highway extending generally in a northerly-southerly direction at the location involved in the accident. Route 601 curves to the right shortly before the Boswell Borough limits, approximately one and one-half to two miles north of its intersection with Route 30. As a driver going in a northerly direction rounds this curve, he enters a slight dip in the grade of the road, which is followed by a slight gradual upgrade to the crest of the grade some three hundred fifty feet distant. At the crest of the grade, Route 601 intersects with Atlantic Avenue. A 35 m. p. h. speed limit sign is posted on the northeasterly corner of the intersection (i. e., on the right hand side of the road to a driver going north). At this intersection, Route 601 begins
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to slope downward as it continues northward to the next intersection of Route 601 and Mexico Street, and gradually levels off northward as it proceeds into Boswell Borough proper. The highway is of asphalt composition, has two lanes, is twenty-four feet wide and is straight.
There is no dispute as to the circumstances of the accident. The appellant, then nineteen years of age, was traveling north on that portion of Route 601 previously described. As he rounded the curve at the foot of the grade, he saw two small boys some 350 feet ahead of him at or near the crest of the slope. They appeared to be running across the road from its right-hand or the easterly side to the left-hand or westerly side. Appellant testified that he was traveling about 35 m. p. h. from the time he first saw the boys until he hit Michael and that he did not pay any attention to the boys after they crossed the first time. He continued toward the crest of the grade where he had seen the boys, but testified that he did not see them again until he came over the crest of the grade and then saw the boys running back across the highway from west to east, approximately 45 to 50 feet in front of his truck. He applied his brakes but could not stop before hitting Michael Lamb. The boy was almost directly in front of the truck in the northbound lane when appellant saw him. It was not a "dart out" case, for the boys were already in the middle of the road when appellant saw them as he approached the crest. Appellant testified that Michael seemed to "freeze" in front of the truck, while the other boy kept running and escaped injury. He testified that the boys were 45 to 50 feet in front of him when he first saw them as he ...