Appeal, No. 107, March T., 1957, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1953, No. 1854, in case of William F. G. Auel v. Joseph A. White. Order and judgment affirmed.
William J. Krzton, with him W. James Aiken, for appellant.
Bruce R. Martin, with him Pringle, Bredin & Martin, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal from an order refusing to take off a non-suit entered in an action of trespass for personal injuries sustained by a pedestrian when struck by defendant's automobile. The defendant's motion for compulsory non-suit was predicated both upon the failure to prove negligence and upon plaintiff's contributory negligence. The court en banc based its decision solely on the ground that there was no evidence of negligence. We agree with the action taken by the court below, but we do so for a different reason.
Viewing the evidence adduced on behalf of plaintiff as true; reading it in the light most favorable to him; giving him the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts, if any, in his favor as we are required to do in considering the entry of a compulsory non-suit,*fn1 the following facts may be taken as established. On July 3, 1952, at about 9 p.m., the plaintiff, 60 years of age, was walking across Brownsville Road, in the Borough of Brentwood, Allegheny County, from the south to the north side of the street. Brownsville Road is a four-lane thoroughfare running in an east-west direction and is approximately 45 feet wide from curb to curb. After the plaintiff had traversed the roadway on the south side of the street and crossed the center line thereof he was struck approximately two feet north of the line by defendant's car at a point between the left front bumper and fender, and thrown a distance of approximately four feet. Immediately prior to the time of impact the defendant was traveling westerly at a slow rate of speed just to the right of the center line;
the curb lane at the time being occupied by parked vehicles. There was a street light burning overhead at the point where the accident occurred and directly opposite, on the south side of the road, there was a well lighted dairy plant.
By reason of the injuries inflicted the plaintiff was rendered mentally incompetent. At the time of trial there was testimony that since the date of the accident plaintiff had no conception of his surrounding circumstances, was not able to transact business of any kind and did not appreciate the fact that he was involved in litigation. After interrogation the court was satisfied of his incompetency and appointed a guardian ad litem. Inasmuch as the defendant was the only eye witness to the actual happening of the accident the plaintiff called him as for cross-examination and, consequently, most of the facts as outlined above were testified to by the defendant. There was also testimony by the plaintiff's sister and brother-in-law who had visited the scene a short time after the accident that defendant showed them the dent in his left front fender and stated that "I didn't see that man until I hit him." In addition to the foregoing facts defendant testified that there were cars parked on both sides of the street and that a car travelling in the opposite direction passed him seconds before the collision. A police officer summoned to the scene of the accident testified that he didn't observe any cars on the south side of the road, but that if there were any, there would only be room for one or two opposite the point where the accident happened because of a large driveway in front of the dairy.
It was the plaintiff's contention in the court below and in this Court that since the plaintiff had traversed 24-1/2 feet of the width of the street to the point of ...