Appeal, No. 64, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, July T., 1951, No. 1369, in case of Pauline Duda, Admrx., Estate of Michael Duda, Deceased v. Gladys Carothers. Judgment affirmed. Trespass for wrongful death. Before MCNAUGHER, P.J. Compulsory non-suit entered; plaintiff's motion to take off non-suit refused. Plaintiff appealed.
Alexander J. Bielski, for appellant.
John A. Robb, with him Van Der Voort, Royston, Robb & Leonard, for appellee.
Before Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
Plaintiff appeals from the order of the court below refusing to take off a compulsory non-suit entered in an action of trespass. The case arises out of the death of plaintiff's decedent after being struck by defendant's automobile.
The accident occurred on a twenty foot public highway at 10:30 A.M. on a clear, dry day. Decedent had been walking in a northerly direction on the berm and on his left side of the road. One Eckman, driving in the same direction, stopped his car on his side and "hollered back" to offer decedent a ride. As he did so, he saw defendant's automobile about a "car length" from decedent, proceeding southerly on the paved portion of the highway at a speed of 30 miles per hour. Eckman's warning to decedent of the car's approach was not heeded, and decedent "went to take a step ... lost his balance ... went forward and the car struck him." Defendant's car was brought to a stop on the pavement within a "car length and a half" from the
point of collision, and the only skid marks were approximately one foot in length on the paved portion of the highway. The damage to defendant's car was on the side of the right headlight, the windshield, and the right door.
Plaintiff contends that defendant was negligent because deceased was struck when "standing on the berm." The difficulty with this contention is that it is not supported by the evidence. Eckman testified: "Q. Now, do you know of your own knowledge as to whether Duda, the decedent, was on the paved portion or on the berm portion when he was struck? A. I couldn't say that. Q. What did he do if you know? A. It looked like he just took a step forward toward the pavement of the road. It looked like he lost his balance and kind of went forward and the car struck him. Q. And for that reason you weren't able to state whether or not Mr. Duda was on the pavement proper or alongside of the pavement; is that right? A. That is right."*fn1
Although the plaintiff starts with the presumption that the deceased used due care, the presumption does not establish the negligence of the defendant. In Moore Exrx. v. Esso Standard Oil Company of Pennsylvania, 364 Pa. 343, 344, 345, 72 A.2d 117, this Court affirmed on the opinion of Judge SWENEY of the court below, in which that judge stated: "Two questions are here presented: (1) what effect, if any, does the presumption that decedent exercised due care ...