## Facts

- The administratrix of a deceased minor’s estate sued the City of Philadelphia under Pennsylvania wrongful death and survival statutes for a fatal traffic incident involving a city trash truck.
- The accident occurred on a residential city block near a city trash-truck garage; city trash trucks regularly traveled the street.
- The area was known to be frequented by children, including a nearby city playground where many children were playing at the time, and a vacant lot that attracted children.
- A city trash truck, returning to the garage, approached another city truck that was double-parked in the same direction; the double-parked truck’s driver motioned for the moving truck to pass.
- While passing on the extreme left side of the street, the moving truck’s driver saw a large piece of brown wrapping paper (about six feet in diameter and two to three feet high) partly in the gutter and partly on the curb.
- The driver attempted to avoid running over the paper (stating it might contain broken bottles that could damage the tires) and tried to pass between the paper and the double-parked truck.
- Children were under or near the wrapping paper; the moving truck ran over it, fatally injuring the minor.
- A jury returned verdicts for the estate and the minor’s parents; the City moved to set aside the verdicts and for judgment notwithstanding the verdict.

## Issues

1. Whether, viewing the evidence favorably to the verdict winner, a reasonable jury could find the driver negligent because a reasonably prudent person should have foreseen a risk of injury from driving close to or over the large wrapping paper in a child-heavy area.
2. Whether the foreseeability and negligence determinations were for the jury rather than resolvable as a matter of law on a motion for judgment n.o.v.

## Decision

- The court denied the City’s motion for judgment notwithstanding the verdict.
- The court held the evidence was sufficient for the jury to find negligence and causation.
- The court treated foreseeability under the circumstances as a jury question because reasonable factfinders could conclude the risk of harm was reasonably predictable.

## Legal Principles

- Negligence liability turns on whether a reasonably prudent person in the defendant’s position should have anticipated a risk of harm; the exact manner of injury need not be predicted if the general type of harm is foreseeable.
- When the evidence permits differing reasonable conclusions on foreseeability and breach, those questions are for the jury, and judgment n.o.v. is improper.
- Conditions indicating the presence of children in the immediate area may increase the care required of a driver and inform what risks are reasonably anticipated.

## Conclusion

The court left the jury’s verdicts intact, concluding that a reasonable jury could find that, given the driver’s familiarity with a child-populated area and the obvious presence of a large, elevated piece of wrapping paper near the roadway, the driver should have foreseen a risk of serious injury and acted with greater care.


Barker v. City of Philadelphia, 134 F. Supp. 231 (E.D. Pa. 1955)