Finnin, Appellant, v. Neubert.
Supreme Court of Pennsylvania
May 24, 1954
378 Pa. 40
It is entirely proper to inquire of an expert witness what his fees are for testifying in the case on trial: Commonwealth v. Simmons, 361 Pa. 391, 403, 65 A. 2d 353; Grutski v. Kline, 352 Pa. 401, 404, 43 A. 2d 142; Reed v. Philadelphia Transportation Co., 171 Pa. Superior Ct. 60, 62, 90 A. 2d 371. But none of the reported cases go to the length that was permitted here, and in overruling the appellant‘s objection the court abused its discretion. The earnings of the expert witness from other services performed for the defendant were a purely collateral matter and the testimony thereon was not admissible to affect his credibility.
The judgments are reversed and new trials ordered.
Marquis M. Smith, with him Edgar P. Herrington, Jr., for appellants.
Paul M. Robinson, for appellee.
OPINION BY MR. JUSTICE BELL, May 24, 1954:
This is an appeal from a compulsory nonsuit. In such an appeal plaintiffs must be given the benefit
All of the facts, including the place and the cause of the accident, are very meagre, but viewed in the light of the foregoing authorities may be thus stated:
Defendant was driving his automobile south on Constitution Boulevard in the City of New Kensington, Westmoreland County, on December 24, 1951 at about 11:30 o‘clock A.M. Constitution Boulevard is a 25 foot wide street running (generally speaking) north and south and paralleling the railroad tracks which were very close to the street. A walk for pedestrians runs along the railroad tracks parallel with the Boulevard and is separated from the Boulevard for a considerable distance by a concrete wall and then by a continued iron pipe fence 3 feet high. The traffic light on Constitution Boulevard was green for defendant at its intersection with McCargo Street, which ran into but did not intersect the Boulevard, forming as it were a T. Unfortunately young Finnin, who was 11 1/2 years old, could not remember or relate any details of the accident. He was badly injured and was lying on the west side of Constitution Boulevard approximately 8 to 10 feet east of the concrete wall and 3 to 5 feet from the intersection of the wall and the fence, with his head toward the wall or fence and his body virtually perpendicular to the wall or fence.
The only witnesses of the accident were Mr. and Mrs. Neubert. Mr. Neubert, the defendant, was called by plaintiffs as for cross-examination and testified as follows: “... my wife and I were coming down Constitution Boulevard and we were approaching the light and as we came down the light was red and I was slow-
Plaintiffs’ witness, Trzeciak, a police officer, testified that he interviewed defendant right after the accident and defendant said that Finnin jumped the rail. Another witness, Miles Cable, testified for plaintiffs that he was driving his automobile about a block in back of defendant and “... all of a sudden I seen something flying through the air that looked like a card board at a distance, I couldn‘t make it out, it went up in the air, came down and went up a second time,...“.
It is uncertain whether the accident happened opposite the concrete wall or opposite the rail fence, but it was probably the latter.
Defendant‘s car stopped 30 to 50 feet from the spot where young Finnin was supposed to have been hit.
Deep sympathy for this boy does not justify a Court‘s finding negligence unless the evidence justifies it. We said in Brusis v. Henkels, 376 Pa. 226, 102 A. 2d 146, “‘... “The mere happening of an accident is no evidence of negligence. . . Plaintiff has the two-fold burden of proving that the defendant was negligent and that his negligence was the proximate cause of the accident:” . . .‘: Lanni v. P. R. R. Co., 371 Pa. 106, 109, 88 A. 2d 887. . . . It is well settled that conduct is negligent only if the harmful consequences thereof could reasonably have been foreseen and pre-
“In Tua v. Brentwood Motor Coach Co. et al., 371 Pa. 570, 92 A. 2d 209, the Court said (page 575): ‘. . . But it is a cardinal rule of law that “Want of ordinary care consists in failure to anticipate what is reasonably probable—not what is remotely possible“: Camp v. Allegheny County, 263 Pa. 276, 282, 106 A. 314. . . .’ ”
In Lanni v. P. R. R. Co., supra, the Court said (p. 110): “Negligence is the absence or want of care which a reasonable man would exercise under the circumstances. Maternia v. P. R. R., 358 Pa. 149, 56 A. 2d 233. We said in Miller v. Hickey, 368 Pa. 317, 325, 81 A. 2d 910: ‘. . . negligence need not be proved by direct evidence, but may be inferred from attendant circumstances if the facts and circumstances are sufficient to reasonably and legitimately impute negligence: Rockey v. Ernest, 367 Pa. 538, 80 A. 2d 783; Bills v. Zitterbart, 363 Pa. 207, 69 A. 2d 78; Turek v. Pennsylvania R. R. Co., 361 Pa. 512, 64 A. 2d 779; Randolph v. Campbell, 360 Pa. 453, 62 A. 2d 60; Wright v. Straessley, 321 Pa. 1, 182 A. 682. . . ’ ”
Ebersole v. Beistline, 368 Pa. 12, 82 A. 2d 11, is very similar to and in principle rules the instant case. In that case the defendant driver of an automobile going 35 miles per hour through city streets ran into the rear of a bicycle and killed the 9 year old boy who was riding it. A directed verdict for defendant was sustained by this Court, because even when giving plaintiff the benefit of all facts and all reasonable inferences favorable to him, the facts and circumstances proved by plaintiff were not sufficient to enable a jury
In the light of these authorities plaintiffs failed to make out a prima facie case of negligence. There was no proof of absence or want of due care on the part of the defendant and conjecture, speculation, guess or suspicion do not amount to proof. The circumstantial evidence does not provide as the only rea-
Plaintiffs contend that the fact that defendant‘s wife saw the boy a split second before he was hit is sufficient to prove defendant could have avoided hitting him if he had been exercising due care. The evidence does not support or justify this conclusion. There was no evidence of speed and the fact that defendant‘s automobile went 30 to 50 feet before it was brought to a stop is not sufficient under the facts in this case to prove negligence.*
If a boy suddenly and unexpectedly alights on your automobile in front of your windshield, or even suddenly jumps in front of your car from a fence, it is easy to understand how a startled driver of an automobile could not bring his automobile to a stop as quickly as under ordinary conditions because of the inevitable shock which this startling jump or darting would cause.
In this case there was no reason for defendant to anticipate that a child might suddenly jump (or dart) from the fenced off side of this street onto or in front of his car, and consequently there was not sufficient
Appellants rely on Jones v. Carney, 375 Pa. 32, 99 A. 2d 462, but that case is clearly distinguishable, because the three year old boy had been standing or playing in the street for several seconds before he was struck by defendant‘s automobile, and defendant‘s explanation of why he failed to see him conflicted with plaintiff‘s testimony.
The order of nonsuit is affirmed.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
If the defendant saw the 11-year old plaintiff Robert Allen Finnin climb over the railing bordering the thoroughfare on which he was driving his car, a duty devolved upon him to exercise extraordinary caution to avoid colliding with the child in the event the child proceeded into the cartway of the street. The police officer testified that the defendant admitted that he saw that “Finnin jumped the rail.”
It is to be noted also that the defendant himself testified that his wife warned him to “look out for that kid.” This warning from his wife, the officer‘s testimony that he (the defendant) saw the child sufficiently in advance to have anticipated the possible passing of the child into the street, the testimony of the witness Cable that the child was struck with such violence that his body was thrown into the air like a “cardboard,” and the fact that the accident occurred at a street intersection were all factors which, taken together, would, in my opinion, support a prima facie case of negligence. It was for the jury to determine whether the testimony supporting the prima facie negligence was credible.