McNulty v. Atlantic Refining Co. , 1925 Pa. Super. LEXIS 366 ( 1924 )

Argued October 17, 1924. Lawrence McNulty, twelve years of age, was sent by his mother to pay her taxes. He was riding a bicycle in a northwardly direction on the east side of Broad Street in the City of Philadelphia about the middle of the east half of the street. He was overtaken by an automobile belonging to defendant driven by an employee. In attempting to pass the automobile struck the rear end of the bicycle and the boy was injured. The negligence charged was the carelessness of the driver of the automobile attempting to pass without giving warning as required by law and failing to allow sufficient clearance to escape striking the bicycle. If the chauffeur's story is to be believed there is no negligence. He stated he sounded his horn twice and the boy responded to his signal, turned out and then suddenly backed again. The boy testified that he heard no warning signal given and another witness testified that there was no noise; that the driver did not blow any horn or give any warning. Upon cross-examination he stated that he did not hear any warning. The pivotal point of the case is whether the evidence of the chauffeur that he blew his horn twice is sufficiently contradicted by the testimony of the boys that they heard no signal given. The appellant contends that the positive assertion of defendant's driver is not overcome by the negative testimony of the boys.

The learned trial judge in his charge gave full instructions to the jury as to the value of positive as against negative testimony. He very properly, however, made reference to the fact that the testimony of the boy on the sidewalk was, that his attention was directed to the bicycle and automobile and that he saw the automobile some distance back of the the bicycle and that there was no signal given, qualified later on by the statement that he heard none. This testimony required a submission of the case to the jury; Buckman v. Philadelphia R.R. Co., 232 Pa. 351; Eline v. Western Maryland Ry. Co., 262 Pa. 33; Knepp v. B. O.R.R. Co., 262 Pa. 421.

The assignments of error are overruled. The judgment is affirmed.