Appeal, No. 19, Jan. T., 1954, from judgment of Court of Common Pleas of Lehigh County, Jan. T., 1950, No. 193, in case of Michael Zanko, Admr., v. Ralph O. Semmel and Winfield Weiser. Judgment reversed. Trespass for personal injuries. Before HENNINGER, PJ. Compulsory non-suit entered; plaintiff's motion to take off non-suit refused and judgment entered for defendants. Plaintiff appealed.
George J. Joseph and Bernard B. Naef, for appellant.
Harold A. Butz and Butz, Hudders, Tallman & Rupp, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
In his lifetime the decedent, Fritsch, instituted this action of trespass for damages for injuries resulting from being run over by the bulldozer owned by one of the defendants, and operated by the other as his employe. Prior to trial he died and appellant-administrator was substituted as plaintiff. Plaintiff appeals from the refusal to take off the compulsory non-suit entered by the court below.
There being no one who actually saw the occurrence, plaintiff was left primarily and almost wholly to proving his case by calling the defendants as on cross-examination, and depends on certain inferences to establish the negligence charged.
Viewed in a light most favorable to plaintiff, the facts are:
On the day in question and prior thereto the decedent and others as employes of the contractor had been clearing brush, weeds and saplings from a plot of ground. His hours of employment were 9:00 A.M. to 4:30 P.M.
At approximately 4:45 P.M. defendants (sub-contractor and his employe) arrived at the plot with their bulldozer to do heavier work of clearing. Decedent advised them as to matters regarding the work to be performed by them, and then returned to his own duties after stating that he would be quitting in fifteen minutes. Decedent's employer came to the site at approximately 5:00 P.M., and in answer to his inquiry defendant-employe stated that he did not know where decedent then was but assumed he had left. Defendant-employe continued with his work and a short time later, after having gone in a reverse direction, looked forward and discovered that he had run the bulldozer
over decedent, who was writhing and moaning, face ...