Appeals, Nos. 307 and 308, Jan. T., 1957, from judgment of Court of Common Pleas No. 7 of Philadelphia County, March T., 1953, No. 6881, in case of Lois Gregory, individually and as administratrix of the estate of Ernest P. Gregory, v. Atlantic Refining Co., Inc. Judgment affirmed.
A. A. Grarino, with him Della Porta, Guarino & McGinty for appellant.
John J. McDevitt, 3rd, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE COHEN
Defendant's truck collided with decedent's jeep on February 9, 1953. Suit was brought by decedent's mother in her own right and as administratrix of the estate of decedent. At the close of plaintiff's testimony relating to liability, the trial court entered a non-suit which it subsequently refused to take off. Judgment was entered for the defendant and this appeal followed. Excerpts from the opinion of the lower court written by the late Judge CRUMLISH well state the facts and the principles of law applicable to this appeal.
"The collision occurred at about 8:15 A.M., on a clear, dry day. Defendant's oil truck was proceeding westwardly at about twenty-five to thirty miles an hour on Buist Avenue, a two-way thoroughfare, fifty feet wide from curb to curb. Decedent was proceeding in a southerly direction on Massey Street, a one-way northbound street, twenty-two feet wide from curb to curb. From all the evidence, it appears that the driver of defendant's truck first saw the jeep when he was twenty-five feet east of Massey Street, at which time the jeep was halfway past the north building line of Buist Avenue. He applied his brakes, observing that the other vehicle was not going to stop at the intersection; when he realized his brakes were not going to hold in time to prevent a collision, he swerved the wheel of the truck to the left in an attempt to avoid striking the jeep; at the same time, the driver of the jeep proceeded into the intersection, then turned in a southwesterly direction (to the right) in an apparent attempt to avoid being hit. At the point of impact both vehicles were travelling westward on Buist Avenue. There is no question but that Massey Street, on which the decedent was travelling southbound, was clearly marked as bein one-way northbound. On the southwest corner of Massey Street and Buist Avenue there
was a twenty-four inch one-way arrow showing that the street was one-way northbound; the first intersecting street with Massey Street to the north of Buist Avenue, Elmwood Avenue, was also so marked.
"Plaintiff had a two-fold burden of proving defendant's driver negligent and that his negligence was the proximate cause of the accident: Crane v. Neal, Appellant, 389 Pa. 329, 334 (1957). 'The evidence of such negligence must so describe, picture or visualize what happened as to enable one fixed with the responsibility for ascertaining the facts to find that the defendant was the culpable party': Moore, Extrx., Appellant v. Esso Standard Oil Company of Pennsylvania, 364 Pa. 343, 346 (1950). There was no disinterested eyewitness to the accident. Plaintiff called upon defendant's truck driver (not in defendant's employ at the time of trial) to testify on behalf of the plaintiff. After a careful review of the evidence offered by plaintiff on the question of defendant's negligence, viewing it in a light most favorable to plaintiff's cause, the court was satisfied that plaintiff had failed to meet her burden of proof, wherefore concluded that a non-suit was properly entered.
"Much stress has been placed by plaintiff on the presumption that the decedent used due care. Both on the question of negligence of defendant, and possible contributory negligence on the part of the plaintiff, we find the language used in Duda, Admx., Appellant v. Carothers, 379 Pa. 248, 250-251 (1954), particularly applicable to the case at hand. The court, speaking through Justice ARNOLD, stated, 'Although the plaintiff starts with the presumption that the deceased used due care, the presumption does not establish the negligence of the ...