Before HASTIE, GANEY and SMITH, Circuit Judges.
This is an appeal from a judgment entered for the defendants pursuant to a jury's special verdict of no negligence.
The accident giving rise to the suit occurred in Philadelphia as a tractortrailer owned by defendant Smith's Transfer Corp. and driven by its employee, defendant Baldwin, was completing a right turn into an intersecting street. Before turning, the driver had stopped at the intersection, with one car in front of him, because the controlling traffic light was red. On the sidewalk at the corner immediately ahead and to his right he observed some small boys, one of whom was the five and one half year old minor plaintiff. In evidence was a statement of the driver to the effect that the boys appeared to be waiting for the light to change in order to cross the street. When the light ahead became green, the driver, according to his testimony, proceeded forward slowly to the center of the intersection and began his right turn, the cab of his vehicle then having passed beyond the boys, who, while they remained within the driver's range of vision, were still on the sidewalk. After the cab of the vehicle had passed into the intersecting street and the driver could no longer see the boys, the plaintiff moved into the street, came in contact with the turning vehicle, and was badly crushed by a moving trailer wheel.
The plaintiff attempted to establish that the driver was negligent, under the governing Pennsylvania law, not only in the manner in which he executed the turn, but also in his failure to sound the horn beforehand to call the children's attention to his vehicle which was about to turn into their intended course.*fn1 The court recognized this theory in its charge, saying, among other things:
"If you find that a reasonably prudent driver of a tractor-trailer approaching this intersection as Baldwin did and seeing children on the corner, some of whom appeared to be five or six years old, would conclude that such children might be affected by his turn, then you must find that Baldwin was negligent in failing to blow his horn."
However, almost immediately thereafter, only about one hundred words later, the court also charged:
"If the minor plaintiff ran into the side of Baldwin's vehicle after the front of the vehicle had safely passed the group of children on the southwest corner and Baldwin did not and reasonably could not see behind him and observe that the minor plaintiff was in danger, no negligence could be imputed to Baldwin."
It may well be that the trial judge did not intend the second quoted sentence to limit the application of the first, but the charge was susceptible to that interpretation. The jury could well have understood the second sentence as meaning that, regardless of any other consideration, the driver should be relieved of liability if he was turning in a proper and careful manner and the plaintiff ran into the vehicle after the driver could no longer see him.*fn2 But this construction would eliminate the possibility, covered by the quoted preceding sentence of the charge, of finding the driver at fault for not sounding his horn to alert the children to danger before making the turn, however proper his conduct may have been thereafter. We recognize that the court may have meant no more in the second sentence than that no negligence could be imputed to Baldwin from the mere fact of collision. However, we think the jury could well have understood that, if they should find the facts to be as stated in that sentence, the driver should be absolved without regard to any conduct which preceded the actual turn.
We have not overlooked the fact that the language in question is almost identical with that used by the Supreme Court of Pennsylvania in Chapple v. Sellers, 1950, 365 Pa. 503, 507, 76 A.2d 172, 174, 30 A.L.R.2d 1. But that opinion disclosed no issue of negligent failure to warn of impending danger before undertaking a turn. Indeed, the Chapple opinion makes it seem likely, though the point was not discussed, that on the evidence the driver there had no reason to apprehend either that the child who suffered injury was unaware of his presence or that the child was about to cross the street. What makes the present instruction prejudicial is that it may have led the jury to treat this case as if it were like Chapple, in which a finding of due care in the actual turning would necessarily be conclusive.
Exception was also taken to several statements in the charge explaining the significance and proper handling of a purported prior contradictory statement by one of the plaintiff's witnesses. The witness in question, eleven years old at the time of the accident, was the only person to testify from his own observation what part of the defendants' vehicle first struck the plaintiff. This was a contested point on the question whether the turn had been made negligently. The witness testified that the plaintiff came in contact with the right front wheel of the tractor. The defendants countered with testimony of a police officer that shortly after the accident this witness had told him that it was the rear wheel of the tractor which struck the plaintiff. In this posture of the evidence it was for the jury to decide, at the outset, whether the witness had made the earlier statement as alleged by the police officer and, if so, whether that statement, alone or together with other factors, caused them to disbelieve the testimony of the witness that the front wheel had struck the plaintiff. It was appropriate for the court to explain to the jury the correct use of testimony asserting such a prior contradictory statement.
In its first reference to this matter, the court charged that:
"[Where] a prior statement of a witness is given it may only be considered if inconsistent with his testimony on the stand, and if you find it is so inconsistent, it just negatives the testimony that he gave on the stand, and it is not affirmative evidence. It is only offered to ...