Appeals, Nos. 256 and 267, Jan. T., 1956, from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1953, No. 1736, in case of Janie Dorn v. Arthur M. Leibowitz et al. Order affirmed.
Louis Samuel Fine, with him Richter, Lord & Levy, for plaintiff.
J. Webster Jones, for defendants.
Before Stern, C.j., Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Janie Dorn, the plaintiff in this case, was struck by a truck belonging to Arthur M. Leibowitz and Calman D. Leibowitz, partners trading as Calman Beverage Company, when, after leaving the curb, she had committed herself to the regular crossing at the corner of 13th Street and Columbia Avenue in Philadelphia, and had taken 5 steps toward her destination on the other side of 13th Street. In the lawsuit which followed, the Trial Judge left to the jury only the question of damages, instructing them that under the facts they were compelled to return a verdict for the plaintiff. Later, the Judge acknowledged his error in giving binding instructions for the plaintiff and ordered a new trial. Both parties appealed, the defendant partnership contending that it was entitled to judgment on the entire record and the plaintiff objecting to the granting of a new trial.
In support of its motion for judgment on the record, the defendant partnership maintains that the plaintiff did not prove any negligence, citing the well recognized rule that the mere happening of an accident does not entitle the injured person to a verdict. It is true that before there can be a verdict in a trespass action there must be proof that the defendant transgressed some duty of care required under the circumstances.
When the plaintiff arrived at the northwest corner of Columbia Avenue and 13th Street, having walked eastwardly on the sidewalk of Columbia Avenue, she stopped to appraise traffic conditions. A red light warned her not to cross so she waited until the light changed to green, whereupon she looked to her right and to her left, when, being assured no vehicles were coming toward her from either direction, she stepped
down from the curb and headed toward the other side of the crossing, following the liens of the pedestrian crosswalk. Five steps from the curb she was hit by a truck, later ascertained to be the defendant's truck. It is not known whether the telltale truck came up 13th Street or whether it emerged from the east side of Columbia Avenue and turned north on 13th Street.
Defendant's counsel argues in his brief that a mystery envelopes the manner in which the accident happened: "The speed, direction, turning, if any, are all not touched upon in relation to the accident. There is a wall or curtain created by the plaintiff's statements that she first saw the truck 'just before it hit me.' 'It hit me so quickly I don't know which way it came' which precludes any possibility that the jury could find the manner in which the truck was operated prior to the collision, and to infer negligence from that manner of its operation."
This is not a case of a lifeless form found lying on the street with no clue as to the instrumentality or the procedure which extinguished the lamp of existence. This is the case of a living person who testified to being hit by a truck - not a "mystery" truck, but a truck palpable to sight and touch. In fact, the defendant does not deny that its truck hit the plaintiff. The fateful vehicle could have gotten to the Columbia Avenue crosswalk only by one of two ways: it either came up 13th Street and passed over Columbia Avenue, ignoring the red light against it, or it made the turn from Columbia Avenue ...