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SMITH v. FARVER (07/14/53)

July 14, 1953

SMITH
v.
FARVER



COUNSEL

Robert J. Hourigan, Andrew Hourigan, Jr., and White, Rowlands & Hourigan, Wilkes-Barre, for appellant.

J. T. Griffith, Walkes-Barre, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther and Wright, JJ.

Author: Hirt

[ 173 Pa. Super. Page 392]

HIRT, J.

Defendant's truck, while driven by him eastwardly across North Street Bridge in Wilkes-Barre, came in contact with the superstructure of the south side of the bridge. The force of the impact threw a wooden board from defendant's truck through the windshield of a motor vehicle driven by plaintiff as it was proceeding westwardly on the other side of the cartway on the bridge. The sight of plaintiff's left eye was all but completely destroyed by the shattered glass. At the close of plaintiff's case, in this trespass action brought by him to recover his damages, the trial judge entered a compulsory non-suit. This appeal is from an order of the court refusing to take it off. The order must be reversed.

Plaintiff was driving at a moderate rate of speed wholly on his right side of the cartway. It is conceded that he was not chargeable with contributory negligence in any respect.

The court in effect found from the evidence that defendant drove his truck into the steel superstructure

[ 173 Pa. Super. Page 393]

    of the bridge to avoid striking another vehicle improperly driven as it passed defendant's truck. From the finding the court concluded that, in so doing, the defendant acted in an emergency not of his making and accordingly was not chargeable with negligence imposing liability for damages resulting from plaintiff's injury. The evidence in its entirety in this record, as to how the defendant's truck happened to come in contract with the side of the bridge, is the following testimony of defendant himself, when called by plaintiff as on cross-examination: 'Q. Would you tell the Court and jury when you first saw the Newcomb Brothers truck operated by Mr. Smith? * * * A. Why, just after when the car pulled out to take my place in traffic there between the two trucks that was there and this Newcomb Brothers truck was the next one, because I struck the bridge -- * * *.

'Q. About how far from you in feet was the Newcomb Brothers truck when you first saw it? A. It was just a little ways because my body struck the bridge and struck right across there.

'Q. Was it ten feet away, twenty feet away, thirty feet away? A. I would say around twenty foot maybe.'

Of course, under the general rule, plaintiff having called the defendant for cross-examination, was bound by his testimony since there was no contradiction, but only to the extent that his testimony, insofar as it was uncontradicted also by the circumstances, absolved the defendant from the consequences of his act. Matthews v. Derencin, 360 Pa. 349, 62 A.2d 6. In passing on the motion to remove the compulsory non-suit, the lower court was bound to consider the evidence in the light most favorable to the plaintiff and he was entitled also to the benefit of every reasonable inference ...


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