Schneider v. Sheldon

¶1Dissenting Opinion by

¶2The uncontradicted testimony presented by plaintiffs was that the four year old child had crossed and recrossed Mount Vernon Street; that she was bending over and straddling the south curb to pick up some beads. At this point plaintiffs’ witness, Rose White, turned her head away and talked to a friend. “In a matter of seconds” Rose heard the screeching of automobile brakes and saw Joan land on the south pavement.

¶3The error of the majority opinion is in failing to realize that there was not a scintilla of evidence to show (1) where the child was when she was struck, i.e., straddling the curb, or in the street, and if so, where, or whether she was moving or darting at the time, and if so, how suddenly and in which direction; or (2) where defendant’s automobile was when it struck the child. Anyone who has had anything to do with children knows that children of that age never stand still, as the majority assumes she stood still in this case.

¶4The law is well settled that plaintiff has the burden of pi'oving by a fair preponderance of the evidence *366that defendant was negligent; and that neither a jury nor a Court is permitted to infer negligence from guess or conjecture or even from the happening of an accident. “. . . The mere happening of an accident is no evidence of negligence and is not sufficient to take a case to the jury. Furthermore, the mere fact that an automobile comes in contact with a pedestrian . . . raises no presumption of negligence . . .: Flanigan v. McLean, 267 Pa. 553, 556, 557, 110 A. 370; Gilles v. Leas, 282 Pa. 318, 321, 127 A. 774; Stanalonis v. Branch Motor Exp. Co., 358 Pa. 426, 429, 57 A. 2d 866; Stauffer v. Rwy. Exp. Agency, 355 Pa. 24, 25, 29, 47 A. 2d 817; Houston v. Republican Athletic Association, 343 Pa. 218, 220, 22 A. 2d 715.”: Thompson v. Gorman, 366 Pa. 242, 246, 77 A. 2d 413.

¶5In Finnin v. Neubert, 378 Pa. 40, 105 A. 2d 77, we sustained a nonsuit where defendant was driving an automobile in daylight with an unobstructed view on a 25 foot wide street and struck an eleven year old boy on the left hand side of the street with such force that his body flew up in front of the car which was traveling at such speed that it was not stopped until 30 to 50 feet past the accident.

¶6In Ebersole v. Beistline, 368 Pa. 12, 82 A. 2d 11, the defendant with an unobstructed view drove his automobile at 35 miles per hour in daylight on a city street, ran into the rear of a bicycle and killed the nine year old boy who was riding it. This Court sustained a directed verdict for defendant because the evidence was insufficient to describe, picture or visualize what actually happened and the circumstances were not sufficient to enable a jury to reasonably and legitimately infer that the defendant was guilty of negligence.

¶7The instant case is also ruled in principle by Duda v. Carothers, 379 Pa, 248, 108 A. 2d 791.

¶8*367The following underlined statement upon which the majority bases its opinion is unsupported by the evidence, namely: “She had just crossed and recrossed the street before again straddling the south curb and bending over to pick up beads which, as the testimony indicates, was her position when struck and catapulted onto the south sidewalk. The testimony supports a finding that the defendant drove his automobile so close to the south curb*as to convict him of carelessness.”

¶9There was, we repeat, not a scintilla of evidence where the child was when struck, and not a scintilla of evidence that defendant drove his automobile so close to the south curb (or to any other curb) as to convict him of carelessness — indeed, if the majority’s unjustifiable assumption of facts is correct, defendant was not guilty of carelessness, he was guilty of wanton criminal negligence.

¶10For these reasons I would affirm the judgment of compulsory nonsuit entered by the Court below.