Barker v. City Of Philadelphia

134 F. Supp. 231 (1955)

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Nature of the Case

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Facts

The accident occurred in a densely-populated section of the City of Philadelphia. D maintained a garage for its trash trucks approximately one and one-half blocks from the scene of the accident. The trucks used a nearby street regularly in traveling to and from the garage. The drivers of the trucks were thoroughly familiar with the fact that this was a neighborhood of children. A vacant lot which attracts children from time to time along the same street. Also on the same block is a City playground where at the time of the accident, 'quite a gang of' children were playing. On the day of the accident, a driver of a double-parked D vehicle motioned that it was all right to proceed around him. Thereupon, the driver of the truck which was in motion turned out into the extreme left-hand side of the street, in attempting to pass the City vehicle which was parked. While doing so, the driver noticed a huge piece of brown wrapping paper approximately six feet in diameter and two or three feet in height. This paper was lying partially in the gutter and partially on the curb on the east side of the street. The driver stated he did not desire to run over the paper because it might contain broken bottles and thus injure the tires of the truck. He attempted to avoid it by judging the distance between the paper and the trash truck that was double-parked. After endeavoring to pass between these two objects, he then proceeded on to the garage. The driver misjudged the truck's position with respect to the paper and ran over it, crushing to death the boy who was under the paper with a playmate. The Court charged the jury that one cannot be held legally liable for injury to the personal property of another unless by the exercise of that degree of care and caution which a prudent or reasonably cautious man, acting under similar circumstances, would exert could he have foreseen, not the extent of the injury or damage, or manner in which it occurred, but could have foreseen that some injury or damage to the person or property of another would reasonably be expected to ensue as the result of his action or conduct. P got the verdict and D motioned to set it aside.