Appeal, No. 75, Jan. T., 1959, from judgment of Court of Common Pleas of Delaware County, June T., 1957, No. 1885, in case of Geve Dunmore v. Charles McMillan. Judgment affirmed. Trespass for personal injuries and property damage. Before BRETHERICK, J. Compulsory non-suit granted, plaintiff's motion to remove non-suit refused and judgment entered. Plaintiff appealed.
John A. Reilly, with him Edward D. McLaughlin, for appellant.
Edward H. P. Fronefield, with him Joseph T. Labrum, Jr., and Lutz, Fronefield, Warner & Bryant, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. BENJAMIN R. JONES
On February 16, 1957 at approximately 10:30 p.m. - the weather clear and the highways dry - a collision between several motor vehicles occurred at the intersection of 7th and Tilghman Streets, Chester, Pa. 7th Street intersects at right angle Tilghman Street, the former being a "through" highway and the latter a "stop" street. Dunmore, the appellant, was operating his 1957 Ford automobile in a southerly direction on Tilghman Street. As appellant approached 7th Street a stop sign was located approximately 17 feet from the intersection. Appellant stopped at or near the stop sign, looked to his left and right and, observing no approaching vehicles, proceeded into the intersection. While in the intersection appellant's automobile came into collision with appellee's 1956 Oldsmobile automobile which
was proceeding in a westerly direction on 7th Street. Subsequent to the collision appellant's automobile struck a car parked on the westerly side of Tilghman Street south of the intersection and appellee's car struck an automobile parked on the southerly side of 7th Street west of the intersection.
As a result of the accident appellant sustained serious injuries the damages for which he sought to recover in a trespass action instituted in the Court of Common Pleas of Delaware County. At trial, upon the conclusion of appellant's testimony as to liability, the court granted a compulsory non-suit. From the refusal of the court below to remove the non-suit this appeal was taken.
The sole question raised upon this appeal is whether or not the court below erred in its entry of a compulsory non-suit. At the time of the entry of the non-suit the court below held that appellant had failed to prove any negligent conduct on appellee's part. In its opinion justifying the entry of the non-suit the court below further found that the evidence convicted appellant of contributory negligence as a matter of law.*fn1
In passing upon the instant issue certain well-established principles of law must guide us: (1) the evidence, together with all reasonable inferences therefrom,
must be viewed in the light most favorable to appellant (Gift v. Palmer, 392 Pa. 628, 141 A.2d 408; Schofield v. King, 388 Pa. 132, 130 A.2d 93); (2) the mere happening of this accident does not constitute evidence of negligence and the burden was on appellant to prove by a fair preponderance of the evidence that appellee was negligent and that his negligence was the proximate cause of the accident (Schofield v. King, supra, 135; Lanni v. Penna. R.R. Co., 371 Pa. 106, 88 A.2d ...