*1
in a clear
whose
only
case, concerning
minds
facts
reasonable men cannot
the en-
differ,
honestly
nonsuit
ever
. .
try
John-
justified
son v.
363 Pa.
could differ regard the case was for thereto, the jury.
Judgment reversed with a venire. Bell Justice dissents. v. Carothers.
Duda, Admrx., Appellant, 1954. Before Jones, Argued September Stearne, 28, Arnold, Musmanno and JJ. Chidsey, *2 Alexander J. for appellant. Bielski, Der Royston, A. him Van Voort, John with Robb, <& Robb for appellee. Leonard,
Opinion by 8, 1954: Mr. Justice November Arnold, below Plaintiff the of the court from order appeals, entered in a nonsuit refusing take off of death an action The case arises trespass. defend- decedent after struck plaintiffs being ant’s automobile. high- a foot twenty public
The accident on occurred had Decedent day. at 10:30 A.M. on a way clear, dry and on berm northerly direction walking been Eckman, driving his left side of the road. One on his and car on stopped the same his side direction, ride. he did back” offer As “hollered decedent a “car length” he defendant’s automobile about saw so, paved on the southerly por- proceeding from decedent, at a of 30 miles hour. speed per tion of to decedent of the car’s approach Eckman’s warning . . . and decedent to take a step “went heeded, . and the . . went car struck his balance forward lost ear was to a on the Defendant’s brought stop him.” half” “car and a from length within a and the skid point collision, only ap- marks foot in on one proximately length portion paved highway. damage to defendant’s car was the side of the right headlight, windshield, door. right Plaintiff contends defendant was be- negligent cause deceased was struck when “standing berm.” The difficulty with this contention is not by the supported evidence. Eckman testified: do.you own Now, know as to knowledge Duda, decedent, paved portion or on the berm portion when he was struck? say couldn’t What did he do if you know? A. It looked he just like took a step forward toward the *3 of road. pavement the It looked like he lost his bal- ance and kind of went forward and the car struck him. Q. And for that reason weren’t able to state wheth- er or not Mr. Duda or proper of the alongside pavement; is A. That right? is right.”1
Although with plaintiff starts the presumption used deceased due care, presumption does not establish the negligence In defendant. Moore v. Exrx. Esso Standard Oil Penn- Company of 364 Pa. 343, 72 2d sylvania, 344, 345, this Court 117, Sweney affirmed on the of of opinion Judge court in which that below, stated: judge questions “Two are presented: here if (1) effect, pre- does the any, that decedent sumption exercised due care upon have question he was contributorily neg- aas matter of ligent law; and did (2) plaintiff prove 1 just immediately Eckman also testified that before and after all wheels the collision four of the defendant’s car pavement.
251
The
the defendants?
any
part
negligence
the defendants
plaintiff
prove
burden was
upon
...
is
the evidence
negligent by
preponderance
care is a pre-
of due
our
that the
opinion
presumption
not evi-
is
the presumption
of fact. As
sumption
such,
it
for evidence;
not be
dence and should
substituted
Pruden-
v.
[Citing
has no
Watkins
probative quality.
is clear
thing
Pa.
. . . One
tial Insurance
315
Co.,
479]
not
of due care does
and that
is that
the presumption
the presump-
nor does
the defendant
prove
negligent;
real
proof
tion take the case to the jury, without
no
has
presumption
negligence.
defendant’s
facie
until
has made
plaintiff
prima
significance,
Ebersole v.
See
of defendant’s
also
negligence.”
case
In this case there is
which the
could
nothing
for a
reasonably
negligence
use as a basis
finding
speculate
in the
permitted
defendant,
v.
Railroad
Lanni
Pennsylvania
Company,
or guess:
Judgment *4 Dissenting Opinion Mr. : Justice Musmanno pic- An ancient Chinese that a proverb proclaimed passage ture was worth a hundred words. With the philoso- of time the ratio Oriental augmented by that a was worth phers gravely who announced This self-speaking epigram spoke five words. hundred heard in loudly and the Occidental eventually duly world where was worked declare that -up picture was Yankee car- worth thousand words. photographers toonists and ten boosted it to thousand precision and it is not what the one, known with today. odds are many ways spoken comparison
In between pictures empty words and there are of merit because messages convey meaning some written that the which priceless painting conjure. most never could beauty spirituality of the Sermon on the Mount infinitely Gettysburg go beyond and Lincoln’s Address pictures reproductions and three-dimensional portray. may, could ever Be that all as it there can photograph be no doubt that a locale of an auto- usually mobile accident can tell than more scores pages testimony equivo- from witnesses who stumble, driving and contradict under the cate, blunder, exam- friendly enemy attorney. ination of or directly point. The case before us is F. E. Eck subject man witnessed the accident which is the mat litigation. During ter of this the oral examination there were times when his far from edi fying illuminating. plaintiff’s or For under instance, attorney following questioning, Now, ensued*: you driving where were and in what direction then, you driving May morning on the my going Eckman? A. was to visit mother. . . you up your gone right? had is that Now, mother’s; right. your A. That’s What time did arrive at something mother’s? 10:30 or like Around very stay long Q. I see. Did at mother’s place? A. She wasn’t home.” right “Q. How far
Also: over hand side of say stop? A. I the road did wouldn’t far. how .1 * throughout, mine.) (Italics *5 the road. I off—I was far was
don’t know how Q. the extreme right over at On the road. Were you left of or the of the the center road, road, IA. was on the other side.” road?
What the other side? was of directions: not certain himself was attorney di- “Q. which you got when Now, then, Q. And A. Boston. rection were Toward you traveling? A. direction? in a traveling southerly that would be Q. Q. yes. Northerly direction, North. Sir? A. North. A. North.” photographs is to be that when however, noted, fog mist and all the
were introduced evidence, enveloped to that moment which had uncertainty up in the As indicated lifted. story of the accident in the same driving Eckman was Majority Opinion, Eckman walking. that the decedent was direction ride. At car and offered the decedent stopped his a photograph displayed counsel trial, plaintiff’s testified No. and Eckman 1), Exhibit (Plaintiff’s assistance of able with the follows: Would be car to the where here to indicate picture THE COURT: the accident? at the time of parked was do Bielski) : How mark it. (To Wait before Q. Mark MR. BIELSKI: him to mark it? want line. That is across this the car. A. Right outline of Mr. Duda And where hillside (indicating). about right Just at he was struck? standing time a circle ‘X’ and put Mark an in here (indicating). di- picture, at looking that. And, around taken? A. This you say rection would hill.” up going is be- the witness marked, which This photograph, - the decedent “X” shows me as write. The fore off standing certitude with all geographical 25é
road and and on the berm. How can this Court af- firm a nonsuit based a trial the evidence of which demonstrates that in- at the time of the accident the jured person standing highway? was off the In order to have been struck, assailant car would have had to leave the or be so close to berm as to negligence by very position. constitute its presented photograph Plaintiff’s counsel another 2) (Exhibit you plaintiff’s “Q. : I show Exhibit No. you recognize pic- ask and whether or not that point Q. ture? A. I do. . . . Would be able to picture standing on that where Duda was at the time he struck? A. was sir. THE COURT: You Yes, ‘X’ indicated that with an a and circle. sir. Yes, very Let me ink see didn’t take well there. Can ‘X’ that over a little?” The did “X” witness my a little over is here on table as again I It write. reveals that the decedent was stand- ing a foot or off two the road when the accident oc- curred. Majority Opinion
It is as the that Eck- true, states, man at in one time his wavered his recol- paved lection as to decedent was on the portion of the road or on the berm when he was struck. against equivocal reply, as this we have his However, positive portion answer: And what of the road was walking he on? A.He on the berm.”
It is to be noted also that Eckman stated that there adequate space car road between Eckman’s spot for and the where the decedent stood the defend- pass. car Eckman also testified that the de- ant’s failed to blow the horn of her car to warn the fendant decedent. happened quoted accident as the Ma- if the
Even yoii jority: “Q. if. What he do .[the'decedent] did .know? A. It just looked like lie took forward toward step tlie like be lost Ms road. looked car struck and kind of went and tbe balance forward there for the Mm.” still be a question would in driving to whether the defendant was negligent in her car so to a who direct pedestrian, her close slightest movement of pedestrian vision, him into contact with the car. bring would light record in the most Reading the favorable are as we do required considering the plaintiff, matter of a believe that nonsuit, here for the presented fact was considera- question *7 a jury. tion of County, Inc. v. Dell of Mercer
Home Builders Corporation, Appellant. wood