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KANE v. SCRANTON TRANSIT COMPANY (02/13/53)

February 13, 1953

KANE
v.
SCRANTON TRANSIT COMPANY, APPELLANT



Appeals, Nos. 24 and 25, Jan. T., 1953, from judgments of Court of Common Pleas of Lackawanna County, March T., 1951, No. 657, in case of Helen Kane et vir. v. The Scranton Transit Company. Judgments affirmed.

COUNSEL

Vivian P. Edwards, Jr., with her Eugene Nogi and Nogi, O'Malley & Harris, for appellant.

John W. Bour, with him Carlon M. O'Malley, for appellees.

Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Stearne

[ 372 Pa. Page 497]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The Scranton Transit Company, defendant, appeals from judgments in favor of Mr. and Mrs. Thomas Kane for damages sustained when Mrs. Kane was struck by a bus owned and operated by defendant company. A jury returned a verdict of $20,000.00 for the wife and $10,000.00 for the husband, but the latter filed a remittitur of $3,000.00 at the suggestion of the trial judge. The court in banc overruled defendant's motions for judgment n.o.v. and for new trial. These appeals followed.

The accident occurred near the intersection of Lackawanna and Wyoming Avenues in the city of Scranton. Wife-plaintiff had been shopping in a food store on Wyoming Avenue. She proceeded south along Wyoming Avenue to the northwest corner of the intersection. She was crossing from the north to the south side of Lackawanna Avenue when struck by defendant's bus, which had just turned into Lackawanna Avenue from Wyoming Avenue.

The exact point at which Mrs. Kane crossed Lackawanna Avenue is the chief factual issue in the case. Appellant argues that "Both the preponderance of the

[ 372 Pa. Page 498]

    testimony and the incontrovertible physical facts clearly establish that the accident occurred below and west of the street intersection." A review of the record reveals wide disagreement among the many witnesses in their descriptions of the point at which the accident did occur. It is true that several of them placed the point of impact at a considerable distance from the pedestrian crosswalk; some of the testimony offered by defendant would indicate that Mrs. Kane was fifty-four feet from the crosswalk when she was struck. On the other hand, the plaintiff herself testified positively that she crossed directly at the intersection. The pictures introduced into evidence show a light pole just at the Wyoming Avenue building line. Plaintiff testified that she purchased a newspaper at the stand adjacent to this pole, and that she started across Lackawanna Avenue from the easterly (or Wyoming Avenue) side of the pole. She was corroborated by a disinterested eye-witness, Patrick J. Dixon, who pointed to a spot well within the crosswalk as the place of impact. The lieutenant from the fire department who rendered first aid testified that he found the plaintiff lying in the street about nine or ten feet from the crosswalk. It was clearly the province of the jury to weigh all this conflicting evidence and reach a conclusion on the disputed question of fact: Decker v. Kulesza, 369 Pa. 259, 264, 85 A.2d 413.

The incontrovertible physical facts doctrine has no application to the facts of this case. Defendant bases this argument on the location of skid marks on Lackawanna Avenue shown by a photograph taken almost immediately after the accident occurred. There are many reasons why such evidence cannot be regarded as proof of an incontrovertible physical fact: (1) ...


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