Smith v. Pachter

These actions in trespass by minors and their parents will be disposed of in one opinion as they involve the same facts and were tried by one jury. The causes arose as the result of a collision at a street intersection between an automobile owned and driven by the defendant and a sled on which the minors were coasting. At the conclusion of the trial, binding instructions were given for the defendant, judgments were entered on the verdicts, and the plaintiffs have appealed. We are of the opinion that the deductions to be drawn from the evidence are not so clear that the trial court was justified in taking the questions of defendant's negligence or plaintiffs' contributory negligence from the jury and disposing of them as a matter of law.

In determining whether the court was justified in giving binding instructions for the defendant, not only should the testimony be read in a light most favorable to plaintiffs, all conflicts therein being resolved in their favor, but plaintiffs must be given the benefit of every fact and inference of fact pertaining to the issues involved which may reasonably be deduced from the evidence: Guilinger v. Penna. R. R. Co.,304 Pa. 140, 144, 155 A. 293. We will endeavor to detail the pertinent evidence from that standpoint.

The accident occurred at the intersection of Pittston Avenue and Palm Street in the city of Scranton. Pittston Avenue, described as running north and south, is paved, is forty feet in width between curbs, and has on it northbound and southbound trolley tracks. It is intersected at right angles by Palm Street, a dirt street forty feet in width between curbs. The neighborhood, at the time of the accident, was generally residential in character. Three of the corners were occupied by residences and the fourth by a small store, and there were within a block a motion picture theatre, a barber shop, and a wholesale establishment. It is admitted that the intersection was well lighted. Palm Street, from Prospect Avenue, the next highway east of Pittston Avenue, descends toward the latter street at a grade of from seven to ten per cent, while Pittston Avenue has a grade of only one per cent.

A heavy snow had fallen in Scranton on Thanksgiving Day, 1938, making ideal coasting conditions for children, of which they took advantage for a number of days. On November 29, 1938, on a clear and cold winter night, Calista Smith, then sixteen years and three months of age, and Anne Donovan, then fourteen years and eleven months of age, borrowed a sled and, starting at the intersection of Prospect Avenue and Palm Street, coasted west on Palm Street until they collided with defendant's car being driven north on Pittston Avenue. The Smith girl was lying prone on the sled while the Donovan girl was kneeling between the legs of the former and holding a bar on the side of the sled. They met with severe injuries, those to the Smith girl being such as to probably render her helpless for the rest of her life.

Employees of the city of Scranton, knowing that a large number of children were coasting on the Palm Street hill, had caused a band of ashes to be spread across Palm Street beginning twenty-two feet east of the east curb line of Pittston Avenue and extending further east twenty feet, for the purpose of stopping the sleds before they would come into Pittston Avenue. Thirty or more children were coasting on Palm Street on the evening of the accident, as they had been for several days before, and invariably the sleds were stopped by the ashes until these two girls descended the hill. The ashes failed to stop the momentum of their sled and they passed into Pittston Avenue with the distressing results mentioned. The negligence alleged and relied upon by the plaintiffs was that the defendant drove his car at an excessive rate of speed and did not have it under proper control at a street intersection where he knew, or ought to have known, that children were gathered in considerable numbers and were engaged in coasting. There are other important facts to which we will refer later.

We cannot say as a matter of law that there was not sufficient evidence to support a finding of a jury that the defendant was negligent. There was testimony that defendant was driving at a rate of thirty-five to forty miles per hour and did not slacken his speed until he entered the intersection and that he did not blow his horn. The uncontroverted evidence coming from both sides as to where the defendant stopped his car compels the conclusion that the defendant was not moving as rapidly as plaintiffs' witnesses testified but still leaves room for a finding that he did not enter the intersection with his car under such control as the circumstances required. A motor vehicle driver in approaching an intersection must carefully look for traffic on the cross street and approach with his car under complete control so that he can stop on the shortest possible notice: Morris v. Kauffman, 120 Pa. Super. 515, 182 A. 758; Mosely v. Connor, 318 Pa. 17, 19,177 A. 817; Rhoads v. Herbert, 298 Pa. 522, 148 A. 693. While we recognize the fact that coasting may give rise to different duties and responsibilities, we have established principles to guide us in the immediate matter under consideration.

Where there is not any testimony to support a finding that a driver knew, or had reasonable ground for knowing, that children were sledding or likely to be sledding on a hill at the time of passing, and a sled not under control came rapidly without warning or opportunity to apprehend its approach and a collision took place, there is no liability for damages to children who may be injured: Eastburn v. U.S. Express Co.,225 Pa. 33, 73 A. 977; Post v. Richardson, 273 Pa. 56, 116 A. 531;Wetherill v. Showell, Fryer Co., 264 Pa. 449, 107 A. 808;Leslie v. Catanzaro, 272 Pa. 419, 116 A. 504; Stickler v.Catanzaro, 86 Pa. Super. 63; Kovalchik v. Demo, 94 Pa. Super. 167; Siglin v. Haiges, 95 Pa. Super. 588. On the other hand, where a driver can see children on a cross street or knows or ought to know that children are riding on a hill, he is required to give warning of his approach and take other reasonable means to guard against accident consistent with the circumstances: Yeager v. Gately Fitzgerald, Inc., 262 Pa. 466, 106 A. 76; Idell v. Day, 273 Pa. 34,116 A. 506; Rossheim v. Bornot, Inc., 310 Pa. 154,165 A. 27; Fisher v. Duquesne Brewing Co., 123 Pa. Super. 208,187 A. 90; Morris v. Kauffman, supra; Meyers v. Central R. R.of N.J., 218 Pa. 305, 306, 67 A. 620.

The defendant was a peddler whose business took him into and through this district frequently. He had a customer in that locality and was familiar with it, particularly with its topography. He passed the intersection every weekday at least twice and knew that the streets coming into Pittston Avenue, particularly Palm Street, descended at a stiff grade to the avenue, thus affording an ideal street, from the standpoint of children, for coasting. The children had been using the street to a considerable extent for five days. A police officer testified that from a point on Pittston Avenue thirty feet south of the southerly curb line of Palm Street he could see the surface of Palm Street to the east for eighty or ninety feet, while an assistant city engineer who had made measurements testified that from a point in the easterly cartway of Pittston Avenue and sixty feet south of the curb line of Palm Street, a person riding in an ordinary car could see the surface of Palm Street for seventy-eight feet to the east. The view of Palm Street was extended as one advanced north on Pittston Avenue. There were at the time at least thirty children coasting on the hill and five or six sleds passed down just before that of the minor plaintiffs, one going immediately in front. There were at least eight children standing with their sleds at the foot of the hill, as expressed by one witness, or at the corner, as expressed by another. Considering the knowledge which the defendant had of the use of the street and his familiarity with the surroundings, it is our opinion that the court was not justified in saying as a matter of law that the defendant neither knew nor ought to have known that children were coasting upon this street. When he approached the street, if he had his car under the required control and looked, a jury might have found that he would have seen the descending sled in time to avoid the accident.

The question of the contributory negligence of the minors does not seem to have been stressed by the defendant in the court below and was not given serious consideration by that court. "Coasting on a public street which is not put to extended public use, and not expressly prohibited by ordinance, is not necessarily a nuisance, nor is it an unlawful act or negligence per se. . . . Where, under the undisputed facts, coasting upon a street is clearly and manifestly dangerous, it may be the duty of the court to so declare as a matter of law, but, where the evidence is conflicting, and the inferences to be drawn are not clear, the question whether plaintiff has exercised care and diligence to avoid danger while coasting, such as to be expected of a reasonably careful and prudent man under like circumstances, is for the jury": Idell v. Day, supra, p. 37. Also, see Meyers v. Central R. R. of N.J., supra;Morris v. Kauffman, supra; Fisher v. Duquesne Brewing Co., supra. In view of the facts that this was the only sled known to have gone through the ashes and that this was a residential district, we cannot say that coasting on this street was so clearly and manifestly dangerous as to make it the duty of the court to declare it negligence as a matter of law. We cannot say that the conduct of the plaintiffs did not conform to that of a reasonable person of like age under like circumstances. Coasting on this street not having been expressly prohibited by ordinance, not being negligence per se, and not being clearly and manifestly dangerous, it was for the jury and not for the court to determine whether the conduct of the minor plaintiffs was such as was to be expected of a reasonably careful and prudent person under like circumstances.

We are not unmindful of the contradictory evidence furnished by defendant and it has a strong appeal, but it was for the jury to sift this evidence. At best the cases are close and it is only in clear cases that the court is justified in taking a question of contributory negligence from the jury and disposing of it as a matter of law: Shaffer v. P. R. R. Co., 258 Pa. 288,292, 101 A. 982; Jackson v. Curry, 117 Pa. Super. 63, 67,177 A. 346. There is much in defendant's evidence and arguments, to which we have not referred, that requires careful consideration by a jury. As an aid to the jury, when the cases are tried again, the parties are entitled to specific instructions as to the duties of plaintiffs and defendant as applied to the facts developed.

The judgment in each case is reversed and new trials are awarded.