Appeal, No. 137, Jan. T., 1958, from judgment of Court of Common Pleas of Chester County, Dec. T., 1952, No. 21, in case of Stephen Sarnak v. Anna Cehula, administratrix of the estate of Stephen Cejula, deceased. Judgment affirmed.
G. Clinton Fogwell, Jr., with him Philip J. Reilly, Harold K. Wood, and Reilly, Wood and Fogwell, for appellant.
Joseph G. McKeone, for appellee.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Two motorists were driving through the shadows of the night (June 10, 1950, 1:55 a.m.) on Route No. 83 between Spring City and Phoenixville, when they beheld in the rays of the headlights of their car the remains of a tragedy of the road. An overturned Oldsmobile four-door sedan, with its wheels pointing to the sky and its roof hugging the ground, lay in the field some fifteen feet west of the 30-foot highway on which they were traveling. The upper part of a human body with a blood-smeared arm suspended limply through the shattered windshield of the wrecked automobile, the feet of another body projected out from beneath the capsized roof. A few moments later two other motorists arrived on the scene, and the assembled four men lifted the car over to its wheels, releasing the bodies imprisoned within the wreckage. It developed later that the person who had been thrown through the windshield was a young man named Stephen Cehula. The one who had been pinned beneath the roof was a youth called Stephen Sarnak. The door on the driver's side of the car was still closed, with the lower part of Cehula's body wedged behind the driving wheel The front door on the opposite side of the car hung open.
A few minutes later a state policeman, Wm. F. Petrie, arrived and proceeded to make observations and measurements in the endeavor to reconstruct the movements of the car prior to the disastrous termination of its ill-starred journey. On the highway at this point lay two pieces of a 40-foot telegraph pole; a third piece, being the upper extremity, dangled from the wires which it had originally upheld. The lowermost section of the pole had been uprooted from the hole in which it had been imbedded. This hold measured 10 feet from the car. From this evidence, no great deductive talent
is required to conclude that the automobile had collided with the pole and it was this sudden stoppage which threw Cehula through windshield to his death and catapulted Sarnak through the passenger's door to the ground where the car folded over him. Miraculously, Sarnak escaped death but he did sustain serious injuries, because of which he brought an action in trespass against the estate of the deceased Cehula, charging him with negligence in the operation of the car.
Since Stephen Sarnak, under the Act of May 23, 1887, P.L. 158, § 5 was not permitted to testify, and since there has been no spectator to the happening of the catastrophe, the defendant administratrix of the estate of the deceased Stephen Cehula moved for a compulsory non-suit and, later, for binding instructions, contending that there was no evidence that Cehula was actually driving the car at the time of the crash, nor was there evidence, if it should be established he actually drove the car, that he had driven it negligently. The trial judge refused both motions and the jury returned a verdict in favor of the plaintiff. The defendant has appealed, urging upon us what was urged below.
Evidence in personal injury actions is not restricted to oral testimony. Physical objects and markings, under certain circumstances, may speak with a tongue more eloquently convincing than that of any human being. The fact that the telegraph pole, (also referred to as a utility and telephone pole), which was twelve inches in diameter and forty feet in height, had been violently unearthed and torn into three chunks, ...