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FREUND v. HUSTER. (12/30/59)

December 30, 1959

FREUND, APPELLANT,
v.
HUSTER.



Appeal, No. 157, Jan. T., 1959, from judgment of Court of Common Pleas of Montgomery County, Feb. T., 1955, No. 251, in case of Valentin Freund, administrator of the estate of Valentin Karl Freund, deceased v. Fred W. Huster, administrator of the estate of Fred W. Huster, Jr., deceased. Judgment reversed. Trespass for wrongful death and survival action. Before GROSHENS, J. Defendant's motion for non-suit granted, motion to take off non-suit refused and judgment entered. Plaintiff appealed.

COUNSEL

Cassin W. Craig, with him William W. Vogel, and Wisler, Pearlstine & Talone, for appellant.

C. Howard Harry, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bell

[ 397 Pa. Page 654]

OPINION BY MR. JUSTICE BELL

This is an appeal from a judgment of non-suit. In such a case the evidence must be considered in the light most favorable to plaintiff, and he must be given the benefit of every reasonable deduction or inference of fact arising therefrom. Finnin v. Neubert, 378 Pa. 40, 105 A.2d 77; Schofield v. King, 388 Pa. 132, 130 A.2d 93; Seburn v. Luzerne & Carbon County M.T. Co., 394 Pa. 577, 148 A.2d 534.

Moreover a non-suit can be entered only in a clear case. Gift v. Palmer, 392 Pa. 628, 141 A.2d 408; Schofield v. King, 388 Pa., supra; Seburn v. Luzerne & Carbon County M.T. Co., 394 Pa., supra.

In the light of these principles we shall analyze the meager testimony. Plaintiff, as the administrator of the estate of his son, Valentin Karl Freund, instituted this suit in trespass against defendant who was the administrator of Fred W. Huster, the driver of the automobile involved, for damages under the wrongful death and survival Acts. The action arose from an automobile accident on April 14, 1954, at approximately 8:00 p.m. along Huntingdon Pike in Abington Township, Montgomery County.

Plaintiff's evidence of the accident was very meager. Fred Huster was driving; Karl Freund and Gretchen Walter (aged 15) who was the sole survivor were riding in the back seat. Gretchen testified (pertinently) as follows:

"Q. Can you tell us what happened as you recall it immediately before the collision? A. Well, you come to this road right after the Bethayres station called Welsh Road, and ... at that time there was another car in front of us also, and Fred went to pass it and it was an open road and there wasn't any oncoming traffic, and every time he tried to get around it the car kind of speeded up, and every time we tried to get back into our own lane the car would slow down, and Karl

[ 397 Pa. Page 655]

    said: 'Step on it,'*fn* and whether it was to get around the car faster or what it was for I don't really know ... A. And I said: 'Slow down,' and it was within a matter of maybe one second after that the car went out of control ... Q. Now why did you tell him to slow down? A. I guess because I just observed what was going to happen next. It was very clear what was going to happen. It was more or less an impulse that came out. It wasn't going to do any good. Q. When you say the car went out of control what did you observe, what happened? A. Well, it ran to ...


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