Appeal, No. 208, Jan. T., 1958, from order of Court of Common Pleas of Carbon County, Apr. T., 1957, No. 75, in case of Earl Gatens v. John Vrabel. Judgment affirmed; reargument refused June 24, 1958.
Frank D. Llewellyn, for appellant.
Joseph H. Foster, with him Martin H. Philip, for appellee.
Before Jones, C.j., Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This appeal challenges the propriety of the entry of a compulsory non-suit in this trespass action.
The facts surrounding the accident which gave rise to this litigation are set forth in the opinion of the
lower court: "The accident occurred on April 28, 1956, at about 10:15 P.M. (DST), approximately 135 feet eastwardly of the intersection of Poplar Street with West Ludlow Street, in the Borough of Summit Hill, Carbon County, Pennsylvania.
"The plaintiff testified that he went to Peltz's Bar about 9:45 P.M. to see a television show and left at about 10:10 P.M. He left the Peltz Bar with the intention of going home and crossed from the north side to the south side of West Ludlow Street in front of the Peltz Bar and started through an empty lot located on the south side of West Ludlow Street. He then turned around and walked to the south side of West Ludlow Street, and took up a position four or five feet to the east or in front of the Nahn car which was parked in front of the Nahn home. The Nahn car was parked directly across the street from their home, being two and one-half to three feet off the concrete portion of West Ludlow Street. The plaintiff was standing in front of the Nahn car, and on the south side of it or the side next to the vacant lot. The plaintiff looked to the east and west and saw no cars coming. He then walked north in front of the parked car and looked to his right or east and again saw nothing coming. The plaintiff then turned to look to his left or west and was struck. At one point in his testimony, the plaintiff testified that he was on the dirt shoulder when he was struck, but, when confronted with prior inconsistent statement, he admitted that, at the instant of collision, he had one foot on the concrete portion of West Ludlow Street.The defendant's car was coming from the plaintiff's left, or from west to east. Mrs. Nahn testified that it was threatening rain but not raining, and Officer McArdle stated that it had been raining off and on for about an hour before the accident, and that, at the time the accident was reported
to him, there was a slight drizzle coming down. Mrs. Nahn testified that she did not know the exact point where the defendant's car struck the plaintiff as she only noticed the plaintiff when he was some place in midair. She also testified that when she saw the plaintiff in the air, the ...