Opinion by
Me. Justice Bell,
This is an appeal from a judgment of nonsuit.
A nonsuit can be granted only in a clear case. In considering the entry or removal of a compulsory non-suit, it is hornbook law that “plaintiffs must be given the benefit of all the favorable testimony and every reasonable inference of fact arising therefrom; and all conflicts therein must be resolved in their favor: Parker v. McCrory Stores Corp., 376 Pa. 122, 101 A. 2d 377; Lewis v. Quinn, 376 Pa. 109, 101 A. 2d 382.”: Finnin v. Neubert, 378 Pa. 40, 41, 42, 105 A. 2d 77.
In the light of these familiar rules, the following facts may be taken as proved. On February 2, 1956, at 4:00 P.M., the defendant’s bus, driven by its employee, Andrew Tarapchak, was proceeding easterly from Hazleton on Route 940. It was being driven at a speed of 20 miles an hour. Francis O’Donnell was driving his automobile easterly on Route 940. The plaintiffs were among the bus’s thirty-one passengers. At a point three miles from Hazleton and just beyond the village of ITarleigh, O’Donnell tried to pass the bus; when he was halfway in the middle of the bus or a little ahead of the bus, he saw a car approaching from the opposite direction. There was no evidence how far away the approaching car was, but O’Donnell had a clear vision of approximately 800 feet. O’Donnell then drove his car from the left-hand lane into the right-hand lane, intending to get ahead of the bus. O’Donnell’s right front fender crashed into the left fender of the bus and became hooked at its fender and [580]*580bumper. The two vehicles, thus hooked, veered to the right. After traveling about 20 feet, the bus went over the side of the embankment and toppled over on its side.
The highway at the scene of the accident is twenty-two feet wide and has an uphill grade. The bus was eight feet wide and twenty-five feet, ten inches long. On the day in question, the highway was slushy and snow was piled high along the edge of the road.
A public carrier owes its passengers a high degree of care but it is not an insurer. Where a passenger seeks to recover from a public carrier damages for injuries, the burden is on him to prove the carrier’s negligence in all cases except where the accident happened through a defective appliance or a means of transportation such as tracks, cars, machinery or motive power: Nebel v. Burrelli, 352 Pa. 70, 75, 41 A. 2d 873; Swink v. Philadelphia Rapid Transit Co., 277 Pa. 220, 120 A. 827; Zaltouski v. Scranton Rwy. Co., 310 Pa. 531, 534, 165 A. 847, 848; Dupont v. Pennsylvania R. R. Co., 337 Pa. 89, 91, 10 A. 2d 444, 445.
Plaintiffs allege three grounds on which a jury ■could find the defendant bus company was negligent.
(1) Although the bus was always in its proper right-hand lane, the bus driver did not “give way to the right” in favor of the overtaking vehicle as required by law.
Assuming, arguendo, that this section of The Vehicle Code requires a motorist in his proper lane to move over to the very edge of the higlrvvay Avhenever a motorist in the left-hand lane is trying to pass him, Ave are still unable to find any evidence of negligence. There Avas no clear or positive testimony by any Avitness that the bus driver should have seen that O’Donnell could not safely pass on the other side of the highAvay, or that the bus driver did not give Avay to the right and that the bus driver could have safely pulled further ovTer to the right edge Avhere the snoAV Avas piled along the road. The only testimony on this point Avhieh Avas favorable to plaintiff Avas given by O’Donnell: “Q. Prom the time you sounded your horn until the accident occurred, did Mr. Tarapchak, the bus driver, give way with the bus to the right? A. I Avouldn’t say he did.”
This is not sufficient to prove negligence. It is impossible to tell from the evidence (a) Avhether the bus driver did or did not give way to the right, and (b) Avhether it Avas reasonably possible for him to pull over further to his right. Plaintiff failed to prove how far defendant was from the edge of its (proper) lane, and the jury would have to guess whether or not, in vieAV of the snow on the edge of the road, the bus (a) could and (b) should have pulled over to the right edge of its lane. A jury cannot guess or speculate: Schofield [582]*582v. King, 388 Pa. 132, 130 A. 2d 93. Plaintiffs’ first contention is obviously without merit.
(2) Plaintiffs’ second contention is that the bus driver was negligent in increasing the speed of the bus before he was completely passed by the overtaking vehicle.* (a) The evidence does not support this contention. The bus driver, called by plaintiff as for cross-examination, testified he was traveling at . a speed of 20 miles per hour when the collision occurred. This was substantially corroborated by the testimony of O’Donnell. The collision occurred 352 feet beyond a railroad crossing at which both the bus and O’Donnell’s vehicle had stopped. O’Donnell testified that he started to pass the bus approximately 100 feet beyond the crossing. At a point approximately 80 feet beyond the crossing, the bus was traveling 11 to 12 miles per hour. O’Donnell testified that he did not notice the bus increasing its speed. Therefore, in view of this evidence it would be impossible for the jury to do anything but speculate as to when the bus increased its speed from 12 to 20 miles per hour, (b) Furthermore, assuming that the bus increased its speed as O’Donnell started to pass, there is no evidence that this was the proximate cause of the accident.
In Kite v. Jones, 389 Pa. 339, 132 A. 2d 683, the Court said (page 347): “‘“Ordinarily the question whether the negligence of a defendant is a proximate cause of the accident is for the fact-finding tribunal . . ., but where the relevant facts are not in dispute and the remoteness of the causal connection between defendant’s negligence and plaintiff’s injury clearly appears from the evidence the question becomes one of law, and as such, is within the scope of appellate review: [citing cases].”’”
[583]*583(3) Plaintiffs’ third contention is that the defendant was negligent in failing to have the bus equipped with chains. There is absolutely no merit in this contention. There was no proof of skidding. The accident was not caused by skidding but was due solely to O’Donnell’s gross negligence, i.e., O’Donnell’s failure to judge the distance correctly when he swung back from the left lane into the right lane.
Judgment affirmed.
Mr. Justice Cohen dissents. Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Me. Justice Bell,
This is an appeal from a judgment of nonsuit.
A nonsuit can be granted only in a clear case. In considering the entry or removal of a compulsory non-suit, it is hornbook law that “plaintiffs must be given the benefit of all the favorable testimony and every reasonable inference of fact arising therefrom; and all conflicts therein must be resolved in their favor: Parker v. McCrory Stores Corp., 376 Pa. 122, 101 A. 2d 377; Lewis v. Quinn, 376 Pa. 109, 101 A. 2d 382.”: Finnin v. Neubert, 378 Pa. 40, 41, 42, 105 A. 2d 77.
In the light of these familiar rules, the following facts may be taken as proved. On February 2, 1956, at 4:00 P.M., the defendant’s bus, driven by its employee, Andrew Tarapchak, was proceeding easterly from Hazleton on Route 940. It was being driven at a speed of 20 miles an hour. Francis O’Donnell was driving his automobile easterly on Route 940. The plaintiffs were among the bus’s thirty-one passengers. At a point three miles from Hazleton and just beyond the village of ITarleigh, O’Donnell tried to pass the bus; when he was halfway in the middle of the bus or a little ahead of the bus, he saw a car approaching from the opposite direction. There was no evidence how far away the approaching car was, but O’Donnell had a clear vision of approximately 800 feet. O’Donnell then drove his car from the left-hand lane into the right-hand lane, intending to get ahead of the bus. O’Donnell’s right front fender crashed into the left fender of the bus and became hooked at its fender and [580]*580bumper. The two vehicles, thus hooked, veered to the right. After traveling about 20 feet, the bus went over the side of the embankment and toppled over on its side.
The highway at the scene of the accident is twenty-two feet wide and has an uphill grade. The bus was eight feet wide and twenty-five feet, ten inches long. On the day in question, the highway was slushy and snow was piled high along the edge of the road.
A public carrier owes its passengers a high degree of care but it is not an insurer. Where a passenger seeks to recover from a public carrier damages for injuries, the burden is on him to prove the carrier’s negligence in all cases except where the accident happened through a defective appliance or a means of transportation such as tracks, cars, machinery or motive power: Nebel v. Burrelli, 352 Pa. 70, 75, 41 A. 2d 873; Swink v. Philadelphia Rapid Transit Co., 277 Pa. 220, 120 A. 827; Zaltouski v. Scranton Rwy. Co., 310 Pa. 531, 534, 165 A. 847, 848; Dupont v. Pennsylvania R. R. Co., 337 Pa. 89, 91, 10 A. 2d 444, 445.
Plaintiffs allege three grounds on which a jury ■could find the defendant bus company was negligent.
(1) Although the bus was always in its proper right-hand lane, the bus driver did not “give way to the right” in favor of the overtaking vehicle as required by law.
Assuming, arguendo, that this section of The Vehicle Code requires a motorist in his proper lane to move over to the very edge of the higlrvvay Avhenever a motorist in the left-hand lane is trying to pass him, Ave are still unable to find any evidence of negligence. There Avas no clear or positive testimony by any Avitness that the bus driver should have seen that O’Donnell could not safely pass on the other side of the highAvay, or that the bus driver did not give Avay to the right and that the bus driver could have safely pulled further ovTer to the right edge Avhere the snoAV Avas piled along the road. The only testimony on this point Avhieh Avas favorable to plaintiff Avas given by O’Donnell: “Q. Prom the time you sounded your horn until the accident occurred, did Mr. Tarapchak, the bus driver, give way with the bus to the right? A. I Avouldn’t say he did.”
This is not sufficient to prove negligence. It is impossible to tell from the evidence (a) Avhether the bus driver did or did not give way to the right, and (b) Avhether it Avas reasonably possible for him to pull over further to his right. Plaintiff failed to prove how far defendant was from the edge of its (proper) lane, and the jury would have to guess whether or not, in vieAV of the snow on the edge of the road, the bus (a) could and (b) should have pulled over to the right edge of its lane. A jury cannot guess or speculate: Schofield [582]*582v. King, 388 Pa. 132, 130 A. 2d 93. Plaintiffs’ first contention is obviously without merit.
(2) Plaintiffs’ second contention is that the bus driver was negligent in increasing the speed of the bus before he was completely passed by the overtaking vehicle.* (a) The evidence does not support this contention. The bus driver, called by plaintiff as for cross-examination, testified he was traveling at . a speed of 20 miles per hour when the collision occurred. This was substantially corroborated by the testimony of O’Donnell. The collision occurred 352 feet beyond a railroad crossing at which both the bus and O’Donnell’s vehicle had stopped. O’Donnell testified that he started to pass the bus approximately 100 feet beyond the crossing. At a point approximately 80 feet beyond the crossing, the bus was traveling 11 to 12 miles per hour. O’Donnell testified that he did not notice the bus increasing its speed. Therefore, in view of this evidence it would be impossible for the jury to do anything but speculate as to when the bus increased its speed from 12 to 20 miles per hour, (b) Furthermore, assuming that the bus increased its speed as O’Donnell started to pass, there is no evidence that this was the proximate cause of the accident.
In Kite v. Jones, 389 Pa. 339, 132 A. 2d 683, the Court said (page 347): “‘“Ordinarily the question whether the negligence of a defendant is a proximate cause of the accident is for the fact-finding tribunal . . ., but where the relevant facts are not in dispute and the remoteness of the causal connection between defendant’s negligence and plaintiff’s injury clearly appears from the evidence the question becomes one of law, and as such, is within the scope of appellate review: [citing cases].”’”
[583]*583(3) Plaintiffs’ third contention is that the defendant was negligent in failing to have the bus equipped with chains. There is absolutely no merit in this contention. There was no proof of skidding. The accident was not caused by skidding but was due solely to O’Donnell’s gross negligence, i.e., O’Donnell’s failure to judge the distance correctly when he swung back from the left lane into the right lane.
Judgment affirmed.
Mr. Justice Cohen dissents.
The Vehicle Code of 1929, May 1, P. L. 905, Art. X, §1009: 1931, June 22, P. L. 751, §2 (75 PS §544).