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ANDREW HEFFNER v. ROBERT G. SCHAD (07/20/84)

filed: July 20, 1984.

ANDREW HEFFNER, A MINOR BY MARY HEFFNER, HIS PARENT AND NATURAL GUARDIAN AND MARY SUSAN HEFFNER, IN HER OWN RIGHT, APPELLANTS,
v.
ROBERT G. SCHAD



No. 940 Philadelphia, 1982, Appeal from the Judgment Entered of February 26, 1982 in the Court of Common Pleas of Montgomery County, Civil Division, No. 77-19933

COUNSEL

Francis X. Nolan, Norristown, for appellants.

Richard K. Masterson, Philadelphia, for appellee.

Montemuro, Watkins and Cercone, JJ.

Author: Cercone

[ 330 Pa. Super. Page 103]

Plaintiffs-appellants, Andrew Heffner and his mother, Mary Susan Heffner, appeal the trial court's denial of their motions for judgment N.O.V. and for a new trial which

[ 330 Pa. Super. Page 104]

    followed a jury verdict in favor of defendant, Robert G. Schad, appellee herein. Appellants, alleging that appellee's behavior in striking Andrew Heffner with his car, was negligent, contend that the court should have directed a verdict in their favor. Alternatively, they argue that they should be granted a new trial because of various alleged court errors. We have considered appellants' allegations in light of the record and the applicable law and conclude that the judgment entered by the trial court shall stand.

At a few minutes before 8 a.m. on January 6, 1976, young Andrew Heffner, six and one-half years old, left his home at Glenside Avenue and Hewitt Road in Wyncote, Montgomery County, to catch a school bus across heavily traveled Glenside Avenue. It was a sunny morning and other school children were waiting at the location where the bus was expected. Andrew waited for between five and ten minutes on the corner before he entered the street at the call of one of the other children.

Mrs. Heffner was watching Andrew from a front bedroom of their home. She testified at trial that she saw her son start out from the curb, that he "kind of loped out." A fourteen year old safety guard at the time of the accident, who was waiting on the corner across the street with the other children, testified that Andrew "ran out in the street." She stated that she first saw appellee's car "before Andy started to come across the street" when it was "about fifty feet" away. Mrs. Heffner opined that appellee's car was traveling thirty to thirty-five miles per hour, in the twenty-five miles per hour zone, but that he was going no faster than the other traffic that morning.

Appellee testified that except for a narrow strip of visibility ahead in his eastbound lane, the sun was so brilliant that it blinded his vision. In addition, his testimony was that there were two cars in front of him and one or more cars behind him. He stated that he slowed down, but he was unable to stop because of the traffic. At the intersection of Glenside Avenue and Hewitt Road, appellee saw a shadow appear in the left portion of his windshield; he applied his brakes, but struck Andrew, sending him into the air and

[ 330 Pa. Super. Page 105]

    about fifty feet down the Avenue. Andrew suffered a fractured right femur as ...


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