Hook v. Bell Telephone Co. of Pa. , 1923 Pa. Super. LEXIS 28 ( 1922 )

Argued October 16, 1922. This action was brought by the plaintiffs to recover damages for the loss of their son aged about five years who was run over and killed by a motor truck of the defendant. The accident occurred on Orleans Street between Eleventh Street and Germantown Avenue in the City of Philadelphia. The street is narrow and extends through one block; it has no street car line; the buildings on each side are occupied as residences. The accident occurred between eleven and twelve o'clock in the forenoon, at which time a number of small children were playing in the street and on the sidewalk. Mrs. Hook was sitting with her little boy on the doorstep where she left him to get a drink of water for him. When she returned the accident had occurred. There was evidence that the car was moving at a speed of 18 or 20 miles an hour; that the driver had an unobstructed view of the street from the time he turned into Orleans Street from Eleventh Street and that he did not give warning of his approach. No evidence was offered for the defense — the contention being that the plaintiffs' evidence was not sufficient to make out a case. The court refused to give binding instructions or to enter judgment non obstante veredicto, and this action is sufficiently supported by authority. A discussion of the law applicable to such occurrences and particularly of the duty of the driver of a vehicle to observe due care where small children are congregated on the street or sidewalk may be found in Mulheren v. Phila. Homemade Bread Co., 257 Pa. 22; Kuehne v. Brown, 257 Pa. 37; Bloom v. Whelan, 56 Pa. Super. 277; Ditchfield v. Tharp, 75 Pa. Super. 563. The well-known tendency of young children to run heedlessly into the street calls for extra caution. The evidence shows that there was no other vehicle on this street at the time of the accident and the driver's view was clear. If he was operating the car at a speed of 18 or 20 miles in close proximity to the group of young children referred to by the witnesses, the jury could have found there was a lack of such care as the circumstances demanded. A review of the evidence convinces us that the case was properly submitted to the jury and that the instruction in the charge was as favorable as the defendant could have asked. More than this it is not entitled to.

The objection that there was no evidence of the probable cost of boarding and clothing the son during his minority nor evidence of the condition in life of the parents and therefore no evidence to support a claim for damages does not sustain the request for binding instructions. The verdict was for $450. It was assumed, as shown by the charge of the court, that the child was about five years of age — the father and mother were witnesses. A photograph exhibited their home and the homes of those living in the neighborhood from which some evidence of their condition in life might be drawn by the jury. It was said in Hoon v. Traction Co., 204 Pa. 369, that a verdict in such cases is always more or less conjectural, but the common experiences of life furnish some basis for a reasonable estimate. The probable duration of the life of the son was as evident to the jurors as it would have been if some witness had testified on the subject, and when consideration is given to the small amount of the verdict, it cannot be said the jury was over liberal. The subject was considered in Cosgrove v. Hay, 54 Pa. Super. 175; McCleary v. Pittsburgh Ry., 47 Pa. Super. 366; and Firestine v. Reading Ry., 56 Pa. Super. 42, and the charge of the court was not inconsistent with these cases. If the verdict had been large, there might have been some basis for the complaint that the evidence was not sufficient to justify it, but such is not the case here, for a jury could hardly give less if anything were awarded.

The assignments are overruled and the judgment affirmed.