
    Kuhler et al., Appellants, v. Harrison Construction Company, Appellant.
    Argued September 29, 1948.
    Before Maxey, C. J., Drew, Linn, Stern, Patterson, Stearns and Jones, JJ.
    
      
      Sanford M. Chilcote, with him Dickie, Robinson & McCamey, for plaintiffs.
    
      Harry E. Richter, for defendant.
    January 3, 1949:
   Opinion by

Me. Justice Drew,

This suit in trespass was instituted by plaintiff, Lillian Carson, in her own right, and as guardian of her minor son, William Kuhler, against defendant, Harrison Construction Company, to recover damages for personal injuries sustained by the minor when the bicycle on which he was riding with a companion ran into a large tractor-trailer owned by defendant corporation and operated by its driver. The jury rendered a verdict for the minor and also for the parent plaintiff. After argument, the learned court below granted defendant’s motion for judgment non obstante veredicto as to the parent plaintiff, but refused such motion as to the minor and instead granted a new trial. Both plaintiff and defendant appealed.

The following are the pertinent facts: The accident happened on Spring Garden Avenue approximately at its intersection with Lauger Street in the Northside Section of the City of Pittsburgh. Spring Garden Avenue is a busy thoroughfare running generally east and west. It is sufficiently wide to accommodate east and west/bound streetcar tracks, with a narrow space on either side of the street between the tracks and curb. On its north side it is joined by Lauger Street, which runs in a northerly and southerly direction. This is a closely built up intersection with small buildings and houses erected very close to the pavement of both streets. Lauger Street has a considerable grade and runs into But does not cross Spring Garden Avenue at the foot of the grade.

At about four-twenty in the afternoon of August 26, 1946, minor plaintiff, then nearly thirteen years of age, and a boy friend, Nevin K. Spangler, were riding a bicycle. Minor plaintiff was in a standing position pedaling the bicycle and holding onto the upright which connects the steering column to the handle bars. . His companion was sitting on the seat with his feet dangling and his hands, on the handle, bars, steering the bicycle. Riding in this manner: they came down the steep grade of Lauger Street and at the intersection turned sharply to the left into Spring Garden Avenue against the oncoming traffic. Within three seconds after turning into Spring Garden Avenue the front wheel of the bicycle struck "the right .side of defendant’s tractor-trailer just behind the- cab, while it was proceeding westwardly on .its right side of the street. The. driver stopped the truck almost at the instant .of the, impact,' swerving slightly to his left, in an attempt to avoid the collision. When the truck stopped it was standing in the intersection.. Minor plaintiff suffered serious injuries, but his companion was not hurt.

The only evidence of the speed of the truck of defendant in the entire record was that of Robert Finley, a young man called by plaintiff, who testified that he saw the- truck “one block away” and he estimated its approximate speed-at forty miles an hour. This testimony was of no value and, of itself entirely insufficient to sustain a finding of negligence: Mulheirn v. Brown, 322 Pa. 171, 185 A. 304; Cardarelli v. Simon, 149 Pa. Superior Ct. 364, 27 A. 2d 250.

Looked at in the light most favorable'to plaintiffs, it is clear that no negligence on the part of defendant’s driver was shown. Plaintiff’s. whole -case is founded upon nothing more than the. mere fact that an accident happened and minor plaintiff was injured. The evidence in no way establishes any reckless, careless or unlawful driving or failure to yield the right, of way or to have proper brakes, nor does.it indicate the violation, of any traffic regulations. There is not, one, iota,: of evidence t.o justify a finding that defendant’s driver was, or ought to have been, aware of the. situation in sufficient ..time to avoid the accident. The conclusion is inescapable, that the boys rode down the steep .grade ,of Lauger Street on the bicycle in such a manner, turned against oncoming traffic, and. at such a speed that they could not avoid running into defendant’s truck, which was almost at the intersection at the very moment the bicycle reached it. Therefore, it is obvious that judgment notwithstanding., the verdict should have been entered in favor of defendant as to the claim of minor plaintiff, as well as that of the mother, not because she was guilty of contributory negligence, as stated by the court below, but for the reason that no negligence on the part of defendant was shown.

The learned court below.was convinced that plaintiff had not produced any evidence, of negligence of defendant, for in its opinion it stated: “. . ’. the burden rests on the plaintiff to prove that the defendant was negligent and that the.negligence of the defendant was the proximate cause of the accident. .Did he meet this burden of proof? The court submitted this matter to the jury with some reluctance,'and the jury found for the plaintiff. But after a careful review of the testimony, the court believes that the plaintiff’s proof amounted merely to the establishment of the fact that an accident happened.” Even when that court came to that conclusion, it refused to enter judgment n. o. v. as to the minor plaintiff’s claim, and instead ordered a new trial, giving as its sole reason for such action that it was “in the interests of justice”.

In this state of the record, the court below had no other alternative but to grant defendant’s motion for judgment, notwithstanding the verdict, as to the minor plaintiff as well as to his mother. To have ordered a new trial was a clear abuse of discretion. In this connection, this Court said, in Fornelli v. Penna. R. R. Co., 309 Pa. 365, 369, 164 A. 54: “The facts and the law of the case were fixed; they showed no liability on the part of defendant, and on them the court should not have done otherwise than direct a verdict for defendant. In ordering a new trial under these circumstances, the court below was guilty of a clear and palpable error of law. Its action was controlled by a point of law, the decision of which governed the case, to the exclusion of other considerations, and required the direction of a verdict for defendant. Under such circumstances an order granting a new trial will be reversed . . .”

This record decisively shows that there is no just reason for forcing the defendant to a new trial. Another trial on the same evidence would only result in the same conclusion.

The order of the court below refusing to enter judgment n. o. v. (No. 81) and the order granting a new trial as to the claim of plaintiff, Lillian Carson, as guardian of her minor son (Nos. 80 and 86) are reversed, and judgment as to that claim is here entered for defendant; and the judgment entered in defendant’s favor, notwithstanding the verdict for plaintiff, Lillian Carson, in her own right (No. 87), is affirmed.  