Appeal, No. 157, March T., 1951, from judgment of Court of Common Pleas of Westmoreland County, August T., 1950, No. 496, in case of Carl Dahlstrom et ux., v. Robert M. Shrum. Judgment affirmed.
Louis Vaira, with him Thomas P. Nee, for appellants.
Paul M. Robinson, for Appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
Plaintiff, Ruth Dahlstrom, with her husband, brings this action of trespass against defendant, Robert Shrum, for injuries received when an automobile owned and operated by defendant struck and killed one Gus Davorack, whose body in turn was hurled through the air striking plaintiff. Defendant moved for a compulsory non-suit which the court below granted because plaintiff failed to produce evidence that defendant was negligent. Judgment was entered for defendant. Plaintiff appealed.
Viewed in the light most favorable to the plaintiff, the facts are as follows. On July 26, 1948, at approximately 10:00 p.m., a clear, dry evening, plaintiff boarded a bus at Irwin, Pennsylvania, to travel to Hahntown, which is a sparsely settled village with no sidewalks or street lights. Upon arrival at Hahntown the bus, heading north, stopped in the proper right hand lane of the eighteen foot two lane highway to permit Gus Davorack and plaintiff to alight. Gus Davorack then proceeded around the back of the bus followed at or about three or four feet by plaintiff. As he reached about the middle of the left hand lane, Gus Davorack was struck by defendant's car, traveling south, at it was passing the bus. Deceased's body struck plaintiff causing her serious injuries. When plaintiff was struck she was behind the bus, unable until the last second to see defendant's car. Defendant, called as on cross examination, stated that he was unable to ascertain whether the vehicle he was about to pass was a truck or bus. He was only able to see three small
lights in addition to the head lights. He testified that he was partially blinded as he passed the bus. A State policeman testified that, at the time of the accident, defendant told him that he was traveling approximately thirty-five miles per hour.
The plaintiff sought to locate the accident at a T intersection, thereby attempting to place a higher duty of care upon the defendant than if the accident had occurred between intersections. Defendant testified, however, that his eyes were partially blinded before he passed the bus which was stopped near the T intersection. It necessarily follows that the intersection could not be seen by the defendant.
In order for the plaintiff to secure the striking off of the compulsory non-suit, it is necessary that she establish by proper evidence that she was harmed by defendant's negligence. Negligence is defined as the absence of care under the circumstances: Beck, v. Stanley Company of America, 355 Pa. 608, 50 A.2d 306; Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99. The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm to the injured person, resulting from his act: Scurfield v. Federal Laboratories, Inc., 335 Pa. 145, 6 A.2d 559. In Palsgraf v. Long Island R. Co., supra, it was stated by CARDOZO, C.J. (later Justice, United States Supreme Court): "... the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty."
Also: "The risk reasonably to the perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to ...