Seader v. Philadelphia , 357 Pa. 369 ( 1946 )

The appeals are from a judgment for defendant non obstanteveredicto.

Conrad F. Seader, twelve years of age, was killed by a large truck and trailer owned and operated by the City of Philadelphia. Suit was instituted by the administrator of the decedent and by his father and mother against the City charging the negligent operation of the vehicle. The jury rendered a verdict for plaintiffs, which the court set aside by its judgment for defendant n. o. v.

Viewing the testimony in the light most favorable to plaintiffs, the salient facts may be stated as follows: On March 6, 1945, at about 4 p. m. employes of the defendant were engaged in collecting ashes and trash on Locust Street between 43rd and 44th Streets, in the City of Philadelphia. Locust Street was a west-bound one-way street. It is 34 feet wide from curb to curb and there is a 3 per cent upgrade westward between 43rd and 44th Streets. On that afternoon the street was wet, but not frozen. The vehicle involved was a combination tractor and trailer with automotive power. When coupled together it was 44 feet 6 inches long. The tractor was 7 feet 8 inches wide and the trailer 7 feet 10 inches in width. There is no allegation or evidence of mechanical defects in the vehicle or that it was driven at an excessive speed or in violation of traffic regulations. No objects were projecting from its side or rear.

Decedent, accompanied by a boy companion, both on roller skates and each with a bundle of newspapers in a cloth container slung over a shoulder, came out of a newspaper distributing center at 4303 Locust Street (i. e. north side). The boys skated from the building to the curb. Because the sidewalk was littered and the middle of the street was clear, the boys decided to skate in the middle of the street. They stepped down from the curb and started to "trudge" westward on Locust Street about one foot south and parallel with the curb. At this time the vehicle was proceeding northward on 43rd Street and turned westward into Locust Street on the north side of the street. The boys observed the vehicle as it came north on 43rd Street and made the turn into Locust Street and while it was proceeding west on Locust Street. In the street, as above indicated, decedent was about 8 feet in front of his companion de Haas. The boys stood still in front of 4305 Locust Street to permit the vehicle to pass them. The vehicle was passing the boys about one foot south of them. While the vehicle was passing both boys started to walk or "trudge" westward. The entire vehicle passed the companion de Haas. The tractor and most of the trailer passed decedent, when the vehicle turned "slightly" toward the southwest, i. e. to the left and away from decedent. The movement was made to pass a horse and wagon standing on the north side of Locust Street along the curb. At or about that time the trailer, about 8 feet from the rear, came in contact with decedent who fell under the wheels and was run over. It was testified by de Haas that the slight turn by the tractor caused the rear of the trailer to "sway", which occasioned the accident.

The witness described what he meant by "swaying." On cross examination he was asked: "Q. It did not skid or slide over to strike (decedent) did it? A. I didn't watch it that closely, but I know it swayed. Q. The vehicle just sort of rocked a little from side to side? You have used the word "swayed" — is that it? A. I guess that is what swayed means. As it came over, as it struck (decedent), it moved quite a distance, I know, and maybe you would call that skidded. By the Court: Q. Well, you might call it swinging? A. Yes, it swung."

We are in accord with the following extract from the opinion of Judge Carroll, who in speaking for the court said: "The mere happening of an accident, such as this, does not establish negligence. There is no evidence of any improper driving; the driver had cleared both boys and the evidence does not disclose any carelessness on his part or any defective condition of the vehicle. The vehicle was moving at a very slow rate of speed and the driver had no reason to anticipate that while moving slowly up-grade, a slight deflection of the vehicle in a direction away from the skaters could cause the rear side of the truck to sway over and strike one of them."

In Osterheldt v. Peoples, 208 Pa. 310, 57 A. 703, plaintiff stepped on a street crossing when the body of a passing wagon was directly in front of her. The driver was sitting in front of the wagon, which had then passed the crossing. In turning a corner projecting lumber struck and injured plaintiff. This Court affirmed judgment for defendant on binding instructions.

In Barton v. Craighill, 268 Pa. 464, 112 A. 96, the driver of a truck saw a pedestrian stop and move backward as if to get out of the way, and afterwards the driver turned from the straight course and the pedestrian was struck and injured by an iron beam projecting 5 feet from the back of the truck. It was decided that the driver was not obliged to look back after he had seen the pedestrian's movements.

In the instant case the driver passed the decedent and his companion while they were standing waiting for him to pass them, a foot away from the truck. The driver had the right to travel on the street and was not obliged to stop or keep on in a straight course because he saw the boys beside his vehicle, but in a place of safety.

The case of Dorris v. Bridgman Co., 296 Pa. 198,145 A. 827, relied upon by appellants, presented a different factual situation. There a pedestrian was struck by iron pipes projecting from a speeding truck. The accident is described by Justice KEPHART (later Chief Justice), at page 202: "As plaintiff came to the curb she stepped down two feet, and waited for the truck to pass. The truck pulled out of the car tracks to get around a street car, and then swung back toward the tracks. This caused a fan-like motion of the pipes in the rear of the trailer, with the projection out two feet as a hook; its movement was like the swinging of a scythe, mowing down objects in the way. In this zigzag motion of the car, it caught the plaintiff." In Bryson v. Raum's Admr., 243 Kentucky Reports 121, also relied upon by appellants, recovery was allowed where an automobile came up behind a boy on roller skates and passed so near the boy that he put his hands against the vehicle to keep him from being pressed against the curb. The car then turned away from the boy causing him to fall upon or against it to his injury. Such a situation is wholly different from the facts here presented.

Plaintiff's evidence having failed to establish any negligence on the part of defendant's driver the appeals must be dismissed.

The judgment is affirmed.