Appeal, No. 121, Jan. T., 1957, from order of Court of Common Pleas of Northampton County, Sept. T., 1955, No. 17, in case of James Rafferty v. Louis DiJohn. Judgment affirmed; reargument refused November 6, 1957.
Lewis R. Long, for appellant.
Clyde W. Teel, with him Fackenthal, Teel, McGiffert & Danser, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
This case is affirmed on the able and comprehensive opinion of Judge CARLETON T. WOODRING, writing for the court below, as reported in 9 Pa.D. & C.2d 415.
ING OPINION BY MR. JUSTICE MUSMANNO:
It is said of exhausted desert travelers that as they plod over the scorched yellow earth, seeking water and shade, their hopes are sometimes stirred by what seems to be an oasis in the distance. Amid the sea of sand which surrounds them, this island of greenery with its palm trees and inevitable spring assures them that soon all will be well. However, as they eagerly stumble toward the oasis, it never gets closer. It seems to retreat with the ever-receding horizon, first to cheer, then to tantalize, and finally to torment and torture the travelers. The sad awakening finally comes to the wayfarers that what they have been following was not an oasis but a mirage.
There seems to be a mirage in the law of Pennsylvania which says: "In a case of this character, a non-suit can be entered only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the
plaintiff, could determine in his favor the controlling issues involved."*fn*
Counsel who have been nonsuited in the lower courts look in their law books for guidance as to what to do, and, like the exhausted desert wanderer, they are encouraged to appeal because they are told that if it is conceivable on any reasonable hypothesis at all that their case should have gone to the jury, the appellate court will lift the non-suit and order the case for trial. And so, they appeal, and very often they find that what had seemed to them an oasis in the law books was only a mirage in the Sahara of jurisprudence. That is what the attorney for the appellant in this case learns today.
His client, a man weighing 200 pounds, was struck by an automobile travelling at such a high speed that it catapulted him up and forward for a distance of 48 feet. Even after striking the plaintiff, the offending car travelled 145 feet before it could come to a stop. This Court has affirmed the lower Court which entered an involuntary non-suit on the theory that the plaintiff was ...