Appeals, Nos. 363, 364, 365, 366, 367, 368, 369, 370, and 371, Jan. T., 1958, from judgment of Court of Common Pleas of Luzerne County, Oct. T., 1957, No. 374, in case of Helen Seburn et al. v. Luzerne & Carbon County Motor Transit Company, Incorporated. Judgment affirmed; reargument refused March 5, 1959.
Louis George Feldmann, with him James J. Boyle, for appellants.
William S. McLean, with him James, McLean, Silverblatt & Miner, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE BELL.
This is an appeal from a judgment of non-suit.
A non-suit can be granted only in a clear case. In considering the entry or removal of a compulsory non-suit, it is hornbook law that "plaintiffs must be given the benefit of all the favorable testimony and every reasonable inference of fact arising therefrom; and all conflicts therein must be resolved in their favor: Parker v. McCrory Stores Corp., 376 Pa. 122, 101 A.2d 377; Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382.": Finnin v. Neubert, 378 Pa. 40, 41, 42, 105 A.2d 77.
In the light of these familiar rules, the following facts may be taken as proved. On February 2, 1956, at 4:00 P.M., the defendant's bus, driven by its employee, Andrew Tarapchak, was proceeding easterly from Hazleton on Route 940. It was being driven at a speed of 20 miles an hour. Francis O'Donnell was driving his automobile easterly on Route 940. The plaintiffs were among the bus's thirty-one passengers. At a point three miles from Hazleton and just beyond the village of Harleigh, O'Donnell tried to pass the bus; when he was halfway in the middle of the bus or a little ahead of the bus, he saw a car approaching from the opposite direction. There was no evidence how far away the approaching car was, but O'Donnell had a clear vision of approximately 800 feet. O'Donnell then drove his car from the left-hand lane into the right-hand lane, intending to get ahead of the bus. O'Donnell's right front fender crashed into the left fender of the bus and became hooked at its fender and
bumper. The two vehicles, thus hooked, veered to the right. After traveling about 20 feet, the bus went over the side of the embankment and toppled over on its side.
The highway at the scene of the accident is twenty-two feet wide and has an uphill grade. The bus was eight feet wide and twenty-five feet, ten inches long. On the day in question, the highway was slushy and snow was piled high along the edge of the road.
A public carrier owes its passengers a high degree of care but it is not an insurer. Where a passenger seeks to recover from a public carrier damages for injuries, the burden is on him to prove the carrier's negligence in all cases except where the accident happened through a defective appliance or a means of transportation such as tracks, cars, machinery or motive power: Nebel v. Burrelli, 352 Pa. 70, 75, 41 A.2d 873; Swink v. Philadelphia Rapid Transit Co., 277 Pa. 220, 120 A. 827; ...