The opinion
Dissenting Opinion by
Mr. Justice Drew:
I am constrained to dissent from the opinion of the majority in these appeals, for .1 have searched the record in its entirety in vain for the slightest evidence of. negligence on. the part of defendant. A. careful scrutiny of the testimony adduced reveals that the sole cause of this unfortunate accident, was the negligence of these two young ladies, .who at.the time they sustained their injuries were of the ages, of sixteen years and-three months, and fourteen years and eleven months, respectively. Both of them -had sufficient • capacity and understanding to be sensible to .danger,, .and. yet heedlessly they permitted the sled upon which they were riding to enter upon a- heavily traversed thoroughfare, after dark, being totally oblivious of oncoming vehicular traffic. ■ ' ■ ’
It seems clear. to me that the learned court below properly concluded that the instant cases are ruled by
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Eastburn v. United States Exp. Co.,
225 Pa. 38 ; In that case, where the facts were quite analogous to those of the present cases, we affirmed the judgment entered for defendant n. o. v. on the well-considered opinion of the court below, wherein it was said (p. 38) : “There is not any testimony to justify a finding that the driver had knowledge that the boys were sledding on the hill or that they were likely to be sleddinjg on the hill, at the time he was passing the foot of the hill. It cannot be doubted that for boys to «come down-a hill such as decribed in the testimony in this case,, on a . . ■. sled . . . at the accompanying-rate of speed which would necessarily follow such a descent- and to run into a city street at the foot of the hill, would be- a wrongful act.” Recovery under such circumstances against the -owner or operator of the vehicle has been consistently denied as a matter of law:
Wetherill v. Showell, F. & Co.,
264 Pa. 449 ;
Leslie v. Catanzaro,
272 Pa. 419 ;
Post v. Richardson,
273 Pa. 56 ;
Hoff v. Ward Baking Co.,
70 Pa. Superior Ct. 235 ;
Stickler v. Catanzaro,
86 Pa. Superior Ct. 63 ;
Kovalchik v. Demo,
94 Pa. Superior Ct. 167 ;
Siglin v. Haiges,
95 Pa. Superior Ct: 588.
Giving the plaintiffs the benefit of every fact and inference of fact • properly deducible therefrom, as we must,-yet there is no evidence • whatever upon which a jury could justifiably have concluded-that defendant was negligent. The accident occurred at 7:30 in the evening, after-nightfall. As defendant approached the intersection «where the' accident took place, his-View up Palm Street -to the east- was partially obstructed by a residence on the southeast corner, erected', on a-terrace twenty-eight inches above the level of the sidewalk. Two large maple trees, standing in the yard of- the- house, on the Palm Street side, further impaired defendants vision of the coasters. The neighborhood was residential im character, but Pittston Avenue was a heavily-travelled street,- and to prevent those .sledding on - Palm-Street from endangering themselves and: others by dart
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ing into the intersection, the police had placed a wide belt of ashes on the hillside to halt the sleds forty feet from the crossing.
.Although there was no direct evidence as to the course of the sled upon, which the minor plaintiffs descended the hill,, they were struck at a point five feet north of the southerly curb-line of .Palm Street. It is, therefore,: apparent that, just before , they reached the intersection, these young ladies were upon the side of the hill, nearest to the approaching vehicle of defendant, and close, behind the twenty-eight inch terrace of the house on the corner. In view of the position of the minor plaintiffs upon the sled, one lying prone and the other kneeling and bending over to grasp the side bars, and in view of the further fact, as admitted in argument before the court below, that the south curb of Palm Street was an additional ten inches in height, they could not have been visible to, .a motorist approaching from the south, on Pittston Avenue, even were his view not completely obstructed by the corner dwelling and trees. There is absolutely no evidence whatever that defendant saw, or could have seen, these young ladies before they crossed the sidewalk line of Pittston Avenue.
The majority has stressed the testimony of witnesses' who stated that a motorist on Pittston Avenue would have a view of Palm Street-for distances of seventy-eight to ninety feet to the east from points sixty and thirty feet from the intersection. But not one of the witnesses testified- that the
entire surface
of Palm Street would have, been, visible to such motorist
between the intersection and the farthest points• described,
or that -coasters, crouched upon their sled as were the minor plaintiffs, travelling, after dark, upon the south side of Palm Street, would have been visible above the elevation of thirty-eight inches from the street level to the top of the terrace, this height being further increased by the depth of the snow- thereon. It is- clearly apparent, therefore, that the plaintiffs have failed' to prove that defend
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ant could have seen
this
sled, or that
any
sled was within the alleged range of visibility at the time of his approach.
Even if, as plaintiffs assert, the defendant could have seen children coasting on the hill, he would also have observed that the ashes brought their sleds to a- stop forty feet from the intersection, and under these circumstances the presence.of children standing upon the corner would have had no significance.
The majority has erroneously inferred, it seems to me, that because defendant’s business took him into the vicinity on other occasions and he was familiar with .the topography of the district, he should have known .that Palm Street would be used for coasting at this hour of the evening. They Completely overlook the fact that there is no evidence whatever that defendant had ever seen persons coasting on this hill at any time. It certainly cannot be inferred that he had knowledge of its use for that purpose merely because it afforded “an ideal street, from the standpoint of children, for coasting.” Obviously a motorist is not. bound, to know that there is coasting on every hill or decline which might, or might not, prove attractive to children. .
In the absence, therefore, of any proof that defendant knew that these young ladies or others were likely to come into the intersection with' their sleds, there is nothing in the manner in which the accident occurred to create any inference of negligence. That he had his car under control, and that ¡he-was proceeding at a reasonable speed appears clearly from the undisputed evir dence that he came to a stop within six or eight feet' from the point of collision. In view of the slippery condition of the street, this physical fact effectively negatives the existence of a lack of due care on his part. See
Justice v. Waymann,
306 Pa. 88, 91 ;
Brennen v. Pittsburgh Rys. Co.,
323 Pa. 81, 85 .
The present cases are clearly distinguishable from those cited by the majority. In
Yeager n. Gately & Fitzgerald,
262 Pa. 466 , the defendant admitted that he
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saw children -coasting on the intersecting street, and there was evidence that he could have seen the injured boy himself at a distance of fifty feet from the crossing, which he approached on the wrong side of the street. In
Morris v. Kaufman,
120 Pa. Superior Ct. 515 , similar facts appeared. In
Idell v. Day,
273 Pa. 34 , the defendant' suddenly • swerved his car into the path of persons sledding in the-opposite direction on the same street; and’in
Fisher v. Duquesne Brewing Co.,
123 Pa. Superior Ct. 208 , the operator of the truck made a left turn in front of- the minor plaintiff, whom he did not see because of defective headlights though he knew that others were coasting on the hill.
Meyers v. Central R. R. Co. of N. J.,
218 Pa. 305 , involved a collision between a locomotive and a sled, where it appeared that the engine was running in reverse, that proper warning was not given’ of its approach, - and that the crossing was not protected in the customary manner.
Rhoads v. Herbert,
298 Pa. 522 ;
Mosely v. Conner,
318 Pa. 17 ; and
Rossheim v. Bornot, Inc.,
310 Pa. 154 , merely set forth the recognized duty of motorists at intersections, and did not involve-accidents to persons coasting.
¡Moreover, the facts ¡ indicate that these minor plaintiffs in the present cases themselves were clearly guilty of negligence. They resided in the vicinity and were familiar with the dangers of the hill. They were not small children, but young ladies attending high school and thoroughly capable'of appreciating these- dangers. That they descended the hill at great speed is established conclusively by the fact that theirs was the only sled which pássed through the twenty-foot protective belt of ashes, crossed the further intervening twenty or twenty-two feet and entered the intersection. The same fact is illustrative of their lack of control over the sled, or their indifference to its perilous progress. Although -it travelled a distance of more than twenty feet- after passing through the ashes, it does not appear that-these young ladies made hxiy effort whatever to
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bring it to a stop, to deflect its course from the intersection, or to abandon it at the approach of danger.
While it is true, as the majority points out, that sledding upon a public street is not in every case negligence per se, it cannot be said that those who engage in this sport may do so at dangerous intersections without observing the ordinary rules of care which are imposed upon all users of the highways, whether travelling in conveyances or on foot. Had another automobile, bicycle, or motorcycle, entered this crossing at the same speed and so obviously out of control as the sled- of the minor plaintiffs, there is no doubt that its operator would have been guilty of negligence. Nor would a pedestrian, so reckless of his own safety and' so heedless of the approach of a vehicle on the intersecting streets have been permitted to escape the consequences of such lack of care. The majority has suggested no reason why coasters (particularly of the ages of these young ladies) should be relieved from these common requirements of prudence, and be treated as a special class immune from fault.
As I view the testimony, the fault here was not with defendant, but rather with the minor plaintiffs and there should be no recovery permitted. I would, therefore, affirm the orders of the court below, refusing to grant a new trial to plaintiffs.
Mr. Chief Justice Schaffer and Mr. Justice Linn join in this dissent.