Appeals, Nos. 153, 237 and 242, March T., 1954, from judgment of Court of Common Pleas of Beaver County, Sept. T., 1951, No. 126, in case of John Karcesky et ux. v. Sam Laria and Arvid R. Werner. Judgment affirmed as to defendant Laria and reversed as to defendant Werner.
John D. Ray, with him Peter P. Zion and Reed, Ewing & Ray, for plaintiffs.
Oran W. Panner, with him Thompson Bradshaw and Bradshaw & Panner, for defendant.
Earl J. Schermerhorn, with him Peter P. Zion and Smith & Schermerhorn, for additional defendant.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Plaintiff's motion for a new trial based upon the inadequacy of the verdict was refused by the Court below. Laria and Werner each moved for a judgment n.o.v. and each motion was refused by the Court below. These appeals followed.
Plaintiffs walked across Seventh Avenue in the middle of the block between 12th and 13th Streets in Beaver Falls, Pennsylvania, at approximately 7:15 o'clock P.M. on March 16, 1951. The street lights were on. Laria, the original defendant, was driving his car north on Seventh Avenue which is 66 feet in width from curb line to curb line. The street is wide enough for diagonal parking in addition to four marked lanes of traffic, lanes numbers 1 and 2 accommodating northbound traffic, and lanes numbers 3 and 4 accommodating southbound traffic. Laria was driving in lane number 2 on the left side of the northbound portion of the highway. Werner, the additional defendant, was driving south on Seventh Avenue following the automobile traffic in his left lane (lane number 3).
Plaintiffs walked out beyond the parked cars, looked to their left and saw Laria a block and a half away. Plaintiffs then walked to about the center of the street (Seventh Avenue) when they stopped to let southbound traffic (including Werner's car) pass them. Plaintiffs then looked to their left and saw Laria's car about a block away; they never saw it again until after the accident, and so far as the evidence showed, they never looked again to their left, whence Laria's car was approaching.
Karcesky testified that after the line of cars in Werner's lane had passed by, "I started to take a step across the [center] line, and that's the last I knew." Laria testified two people welked into the side of his
car. The jury might well have found a verdict for defendants.
Karcesky testified several times that the southbound traffic (Werner's) had passed by and cleared his and his wife "when I was starting to step across the center line." "Q. And while you were standing there, did any car traveling south in lanes 3 or 4 strike you ...? A. No, sir."
Mrs. Karcesky testified she was struck by an automobile but did not know which automobile it was. Plaintiffs called Mrs. Werner as their own witness and called Mr. Werner as if under cross-examination. Both Mr. and Mrs. Werner testified that Mr. Werner did not hit the plaintiffs and their evidence corroborated plaintiffs' evidence, viz., that Werner was free of any negligence. Since the testimony of Mr. and Mrs. Werner was not contradicted, plaintiffs are bound by it: Readshaw v. Montgomery, 313 Pa. 206, 169 A. 135.
Werner testified positively that he did not hit the plaintiffs and that he heard a screeching of brakes as Laria's car was passing the plaintiffs. The only evidence to possibly connect Werner with plaintiffs' injuries was his voluntary statement several hours later to the police that there was a brush mark on the side of his car.
The jury returned a verdict in favor of Mr. Karcesky in the sum of $3,000. and for Mrs. Karcesky in the sum of $2,000.; and the verdicts were against both defendants.
"The law is clearly settled; the difficulty arises in close cases such as this of applying the principles to the facts. Plaintiff must prove by a fair preponderance of the evidence that defendant was guilty of negligence and that defendant's negligence was the proximate
cause of the accident.": Fries v. Ritter, 381 Pa. 470, 112 A.2d 189.
In Stauffer, Admr. v. Railway Express Agency, Inc., 355 Pa. 24, 47 A.2d 817, the Court said (page 25): "... It is not enough to show merely that an accident occurred, or that it may have happened from any of several causes, equally probable, for only one of which the defendant would be responsible; a jury cannot be allowed to find a verdict on the basis of a mere guess or conjecture; ..."
We agree with plaintiffs that Werner was not responsible for their injuries. Plaintiffs' evidence, whether considered alone or with all the other evidence in the case was insufficient to establish negligence on the part of Werner, the additional defendant, and judgment will be here entered in his favor non obstante veredicto.
The testimony involving Laria, the original defendant, was meager but sufficient to take the case to the jury. Mrs. Karcesky testified that she was hit by an automobile. Laria admitted that he saw plaintiffs standing in the center of Seventh Avenue when he was 40 feet from them, and that he never looked or saw them again until he was passing them, at which time he saw out of the corner of his eye "something fell". He instantly put on his brakes and "stopped dead". Plaintiffs were found lying on Seventh Avenue, Mrs. Karcesky with her head on the center line and her body extending in a southeasterly direction to a point within 4 feet from the left front wheel of Laria's car. Karcesky was found about 3 feet from the left rear wheel of Laria's car. Marks were found on the left front bumper and left front fender of Laria's car, and Mrs. Karcesky's purse was found "sitting on the left front fender of the Laria car". Laria denied hitting
the plaintiffs, but at one point admitted that "two people had walked into the side" of his car.
It is well settled that the mere happening of an accident or a collision between an automobile and a pedestrian is not evidence or proof of negligence and plaintiffs cannot recover if they were guilty of contributory negligence: Thompson v. ...