Appeals, Nos. 262 and 263, Jan. T., 1958, from judgment of Court of Common Pleas of Luzerne County, July T., 1957, No. 690, in case of Michael Homa et ux. v. Wilkes-Barre Transit Corporation. Judgment reversed.
Mitchell Jenkins, with him Murray Mackson, and Rosenn, Jenkins & Greenwald, for appellants.
James P. Harris, with him Harry B. Schooley, for appellee.
Before Jones, C.j., Bell, Musmanno, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
Mrs. Helen Homa was injured when she slipped on an icy pavement at a point other than a regular car stop, deposited there by the operator of the bus on which she had been a passenger. She and her husband brought a suit in trespass against the Wilkes-Barre Transit Corporation, owner of the bus, but at the trial they were nonsuited. The court en banc affirmed the non-suit and the plaintiff appealed.
A non-suit is one of the most drastic procedures in the civil branch of the law, bringing, as it does, a lawsuit to an abrupt termination, and thus depriving the allegedly injured person of an opportunity to present his case before a fact-finding tribunal. But it is a very necessary measure in the courts because, where the evidence presented by the plaintiff, even if accepted as true, fails to establish a prima facie case, it would be a sheer waste of time and mockery of justice to allow a trial to go to a verdict which must later be reversed. However, before the curtain of non-suit falls, the need for ending the litigation must be so clear that "minds of reasonable men cannot honestly differ" as to the justice of the termination. (Zanko v. Semmel, 379 Pa. 242).
There seems to be little or no doubt regarding the facts in the case before us, but reasonable minds can honestly differ as to the inferences arising from them. On February 26, 1956, Mrs. Homa boarded a Glen Lyons bus in Wilkes-Barre for the purpose of riding to the intersection of South Main and South Streets in that city. However, when the bus arrived at a point three to four car lengths away from her destination, the operator, because of traffic conditions, stopped the bus in the middle of the street, opened the door and told three passengers including the plaintiff to get off, addressing them with the words: "Go ahead." Mrs. Homa proceeded to step down to the pavement but her left foot, after touching the street, lost traction on the ice-encrusted surface, and she fell on her back, sustaining serious injuries.
In the case of Gourlay v. Phila. R.T. Co., 100 Pa. Superior Ct. 419, 421, the plaintiff fell into a hole in the street not at a regular car stop. The Superior Court, in affirming a resulting verdict, said: "We are of opinion that the action of the defendant's employee in stopping the car and calling on those who intended to get off at the intersection of 52d Street and Landsdowne Avenue to alight at such a considerable distance from the lighted crossing and usual stopping place, apparently in order that the car might make up some of the time lost by the traffic jam or for some other purpose not disclosed by the evidence, imposed on him the duty of exercising care that the place so selected by him for the passengers to alight was a reasonably safe one... If, for his own purposes or the purposes of the company, or, at least, moved by no compelling reason, he of his own motion invited the passengers who desired to get off at 52nd Street and Landsdowne Avenue to alight at such a great distance from the usual well-lighted and safe stopping place for passengers, it
may be a question under all the circumstances whether he has performed his full duty in the premises if he directs such passengers to alight there without making some examination as to the condition of the street at that point. Had he ...