Dunmore v. McMillan

152 A.2d 708, 396 Pa. 472, 1959 Pa. LEXIS 569

• Court: Supreme Court of Pennsylvania
• Decided: June 30, 1959
• Docket: Appeal, 75
• Status: Published

Opinions

Opinion by

Mr. Benjamin R. Jones,

On February 16, 1957 at approximately 10:30 p.m. —the weather clear and the highways dry — a collision between several motor vehicles occurred at the intersection of 7th and Tilghman Streets, Chester, Pa. 7th Street intersects at right angle Tilghman Street, the former being a “through” highway and the latter a “stop” street. Dunmore, the appellant, was operating his 1957 Ford automobile in a southerly direction on Tilghman Street. As appellant approached 7th Street a stop sign was located approximately 17 feet from the intersection. Appellant stopped at or near the stop sign, looked to his left and right and, observing no approaching vehicles, proceeded into the intersection. While in the intersection appellant’s automobile came into collision with appellee’s 1956 Oldsmobile automobile which •was proceeding in a westerly direction on 7tli Street. Subsequent to the collision appellant’s automobile struck a car parked on the westerly side of Tilghman Street south of the intersection and appellee’s car struck an automobile parked, on the southerly side of 7th Street west of the intersection.

As a result of the accident appellant sustained serious injuries the damages for which he sought to recover in a trespass action instituted in the Court of Common Pleas of Delaware County. At trial, upon the conclusion of appellant’s testimony as to liability, the court granted a compulsory nonsuit. From the refusal of the court below to remove the nonsuit this appeal was taken.

The sole question raised upon this appeal is whether or not the court below erred in its entry of a compulsory nonsuit. At the time of the entry of the nonsuit the court below held that appellant had failed to prove any negligent conduct on appellee’s part. In its opinion justifying the entry of the nonsuit the court below further found that the evidence convicted appellant of contributory negligence as a matter of law.¹

In passing upon the instant issue certain well-established principles of law must guide us: (1) the evidence, together with all reasonable inferences therefrom, must be viewed in the light most favorable to appellant (Gift v. Palmer, 392 Pa. 628, 141 A. 2d 408; Schofield v. King, 388 Pa. 132, 130 A. 2d 93); (2) the mere happening of this accident does not constitute evidence of negligence and the burden was on appellant to prove by a fair preponderance of the evidence that appellee was negligent and that his negligence was the proximate cause of the accident (Schofield v. King, supra, 135; Lanni v. Penna. R. R. Co., 371 Pa. 106, 88 A. 2d 887); (3) a compulsory nonsuit should be entered only in a clear case (Schofield v. King, supra, 135 and cases therein cited).

Appellant’s evidence and the reasonable inferences therefrom, viewed in the most favorable light, indicate that he stopped his motor vehicle at the stop sign on Tilghman Street, looked “both ways”, “looked east and looked west”. Appellant further testified “I did not see nothing coming, no cars approaching, no lights. So I looked and I started to cross.. When I got out in the street a piece, I kept looking going out in the street, going across. And when I got about the middle of the street, something hit me.” Appellant was without further recollection of that which then happened. To appellant’s left, in the direction from which appellee proceeded, he had an unobstructed view of 650 feet along 7th Street. One Susie Harper testified that she was walking on 7th Street when she saw appellant’s “red and white Ford”, that appellant stopped for the stop sign, that she saw him “look both ways” and, before she had taken “two or three steps” the collision occurred and “the noise of the collision was almost instantaneously after [she] . . . saw [appellant] stop and look in both directions.” There was further testimony that appellee’s automobile, which struck a parked vehicle on 7th Street, came to rest 71 feet west of the west curb line of Tilghman Street and that appellant’s car, which also struck another parked car on Tilghman Street, came to rest on the westerly side of Tilghman Street 50 feet south of the south curb line of 7th Street.

Our examination of this record fails to indicate any evidence whatsoever of negligent conduct' on appellee’s part. Although averred in appellant’s complaint, the record completely lacles any evidence of excessive speed, failure to operate appellee’s vehicle with due regard to the traffic conditions existing, operation of the vehicle in a reckless or wanton manner, failure to have the vehicle under proper or adequate control, lack of attention on appellee’s part, failure to have properly lit headlights, or any other negligent conduct. Appellant’s principal reliance is on the testimony: “I did not see nothing coming, no cars approaching, no lights . . .” (Emphasis supplied). From the latter it is argued that appellant was in a position to see and was paying special attention watching for automobiles approaching from his left and that the testimony that he saw “no lights” constituted positive testimony that appellee failed to have his headlights illuminated. Appellant further argues that the only reasonable conclusion is that appellee’s lights were not lit and such conduct constituted negligence. The court below adequately and properly characterized this testimony: “We think this testimony is too vague, indefinite and fragmentary to support a finding that defendant was in fact operating his automobile without the headlights burning and was therefore guilty of negligence. The testimony is not only ‘negative’ in the full sense of that term; it is not even clear that it refers to vehicular lights at all. While the vexed question of ‘negative’ testimony as opposed to ‘positive’ or ‘affirmative’ testimony has been greatly clarified by our Supreme Court in Costack v. Pennsylvania Railroad Company, 376 Pa. 341, we do not understand that a plaintiff can establish defendant’s negligence on any such meagre and equivocal testimony as that contained in the present record”.

The distance (71 feet) which appellee’s car travelled after the collision is not indicative of negligence on appellee’s part any more than the distance (50 feet) travelled by appellant’s car after the accident. The record lacks any evidence indicating negligent conduct on appellee’s part and the court below was thoroughly justified in refusing to submit the question of appellee’s negligence to the jury. To have submitted such an issue would have permitted the jury to guess and speculate rather than to rely on proof of that which actually occurred. All appellant proved was the happening of an accident; absent further proof, he was not entitled to have his case submitted to a jury.

Costack, Administratrix v. Pennsylvania Railroad Company, 376 Pa. 341, 102 A. 2d 127, Wolfe v. Pittsburgh, 373 Pa. 626, 96 A. 2d 907, Kindt v. Reading, 352 Pa. 419, 43 A. 2d 145, Williams v. Pittsburgh, 349 Pa. 430, 37 A. 2d 540, Healy v. Shedaker, 264 Pa. 512, 107 A. 842, Dandridge v. Exhibitors Service Co., 167 Pa. Superior Ct. 143, 74 A. 2d 670, Craig v. Gottlieb et ux., 161 Pa. Superior Ct. 526, 55 A. 2d 573, Murray v. La-vine, 92 Pa. Superior Ct. 372 and Perry v. Butler, 142 Me. 154, 48 A. 2d 631, relied upon by appellant, are clearly inapposite.

In view of our conclusion that the court below properly entered this nonsuit because of lack of any evidence of negligence by appellee, it is unnecessary to consider whether or not appellant was guilty of contributory negligence as a matter of law.

Judgment affirmed. Costs on appellant.

1 At oral argument our attention was directed to the fact that appellant had requested 'the right to call the appellee as of cross-examination but the court below refused to permit him to do so. The record indicates that this request was not made until after appellant had rested his case upon the question of liability, after oral argument as to liability before the court and after the court had ruled adversely to him on the motion for a nonsuit. While ordinarily such a matter is within the discretion of the trial court yet we need not consider this issue since it was not raised in the statement of questions involved on this appeal: Rule 35, Rules of the Supreme Court of Pennsylvania; Kuhns v. Brugger, 390 Pa. 331, 354, 135 A. 2d 395 and cases therein cited.