*1 ‘premises.’” (Italics Opinion). original Eberle was injured. traversing property employer of the when Majority How the can arrive at its conclusion in. spite this of all authorities can case, cited, explained be on the that it has decided to liberality, interpreting make the of its width the hu- Compensation mane Workmen’s thán 14 not more Act, feet 11 inches.
Mr. Justice joins Cohen in this dissent.
Rafferty, Appellant, Di John. Argued April 1957. Before 16, C. J., Jones, Beta, Jones Musmanno, Arnold, JJ. Chidsey, Cohen, reargument refused Novem- ber 1957. 6,
Lewis R. for Long, appellant. W. him with
Clyde Teel, Faehenthal, Teel, McCif- & appellee. Dcmser, for fert Opinion Per 1957: September 30, Curiam, is and comprehen- This case affirmed on the able T. opinion writing sive Judge Carretón Woodring, & in D. 2d for as 9 Pa. C. reported the court below, 415. by
Dissenting Opinion Mr. Musmanno: Justice It is said of exhausted desert that as they travelers over and plod the scorched water yellow seeking earth, their are seems hopes sometimes stirred what shade, an in to be oasis the distance. Amid sea of sand surrounds this island of its with them, greenery trees and inevitable palm assures them that spring soon all will be well. as stumble However, they eagerly toivard the it never closer. It seems to re- oasis, gets treat Avith first to then ever-receding horizon, cheer, and to to torment and torture the tantalize, finally travelers. The sad comes to awakening finally the way- farers that what have been was not an they following oasis but a mirage.
There seems to be a in the mirage law of Pennsylva- “In nia Avhich a case of this a says: nonsuit character, can be entered when it inconceivable, any reasonable that a mind to hypothesis, desiring solely reach a and conclusion proper in accordance with principles the relevant governing atpav- law, after in the most light evidence ing to the advantageous could determine in plaintiff, controlling- his favor the issues involved.”*
Counsel who been have nonsuited in the lower courts in look their books to law for what guidance like the do, and, desert wanderer, they exhausted are encouraged appeal because are told that they if it is conceivable on reasonable at all any their case should have to the gone appel- jury, late court lift will the nonsuit and order case for trial. And so, they find appeal, often very they that what had seemed to them an oasis the law books only mirage of jurisprudence. Sahara That is what for the attorney appellant this case learns today.
His a man client, struck weighing pounds, *3 by an automobile at such a travelling speed that high it catapulted him and up forward for a of 48 distance feet. Even after striking the the plaintiff, offending- ear 145 travelled feet before it could come to a stop. This Court has affirmed the lower Court which en- tered an nonsuit on involuntary the the theory that plaintiff of was guilty because contributory negligence he was hit when he had taken two steps into the street.
The facts are that the on of night December 6, 1953, 11 James about Rafferty.at after o’clock, bidding good- to friends with whom he had been bye started visiting, across Street in Main the of city Bethlehem to reach his on domicile the other side of the street. Visibility was because of a rain poor was so heavy that one said: “It witness was cats and raining dogs.” As- the of the atmosphere that suming density was some- that less than which would thing accompany a down- the record of reveals that pour animals, visibility was to about feet. still limited 80
* Virgilio Walker,
126 pavement stepping the the
Before down to right. that Assured the left and to the looked to then E. P. street. clear he started across the the coast was evening, visiting Sipple, testi- he had been that whom plaintiff Rafferty had committed that after the fied steps and taken two he to the street had himself position in this for five and remained to take look he struck an automobile' six when was seconds, coming from his left. considering lifting of a we nonsuit, the
Since, light required most evaluate the record the are to advantageous plaintiff, can it be said that’ to the how any reasonable it inconceivable desiring solely proper to reach a and con- a mind, governing prin- with the relevant accordance clusion ciples conclude that of could was law, plain- contributory negligence? of What was free presumably stopped, he to He he looked, tiff do? hit; A still he was witness testified that listened—and travelling per 40 car miles hour defendant’s per limited to 25'miles hour. in a zone where moving per 40 the defendant would be At miles hour, per it is Thus, feet second. within the realm- to 75 Rafferty possibility Mr. looked to left Avhen range yet not within Of vision since car was visibility, of the curtain was limited rain, because right when turned the car but feet, *4 invisibility through the curtain of and bore down broke speed plaintiff such he was unable to the at way. get out says:
Iluddy in his on Automobile Law “Rain Avork conditions Weather such as a blind- Storms. or Snow may ing under some or rain storm circumstances snow pedestrian of a to see a motor vehi- failure excuse late to avoid a collision therewith.” Yol. too until cle 159). p. 5-6,
In the Pa. 82, 87, case of Aaron Strausser, (later Justice) Justice said: Maxey Chief “Whether given contributory or not a state of facts constitutes negligence question as a of fact matter of law or is a jury by for the is of the determined the circumstances might legiti case and whether or not reasonable minds mately differ in their the existence conclusions negligence pedestrian] . . . [the Where he looks but seeing approaching does not see an one, automobile, or, misjudges erroneously its or or for some distance, injury other reason assumes he could avoid to himself, question usually jury jury The one for the . . .’ plaintiff’s could have decided that belief that he could safety cross the had street that he reasonable; right duty to take into consideration the pedestrian, defendant owed as a down him, to slow give signal.” timely authority a Is this also to become mirage? a attorney prospective
When an is consulted a cli- ent and he reads such a statement in is he books, justified advising not jury his client has a that he guilty case as to whether he orwas not of con- tributory negligence? Sipple
It will be recalled that Mr. testified that plaintiff steps after the had taken two into the street stationary and remained for about five or possible six seconds and then was hit. It is from this testimony taking steps that after two into the street, ap- heard noises of the defendant’s car’s proach caught glimpse approaching of the head- lights and he remained fixed and so immobile that the seeing hitting motorist, could avoid him, him. Majority argues The of this Court the testi- mony Sipple regarded of Mr. is not to be because it plain- makes out a better case for the than the justice, tiff make's for out is no rulé There himself..' *5 plaintiff’s dealing de- case must and fair reason, neg- contributory pend testimony his alone so far as ligence not know does is concerned. Often just happened. Paralyzing fright the im- before what impact following may pact so or unconsciousness accuracy memory with freeze shake cannot did at the crucial relate he did or not do what point sufficiently from the Lookers-on removed moment. shock as to insulated from emotional crash be position may infinitely superior an to nar- thus be in enveloped drama in disas- rate the ter. jury
I remove nonsuit let a decide would Rafferty should James have waited until the whether conceivably and all cars on Main Street rain passed law-abiding by, or as a should have whether he, not as much entitled cross the citizen was street to pro- home and motorist had reach his bed, law-breaking his destination at it ceed to while dogs” “raining cats and Bethlehem. Weaver Estate.