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FRANCIS v. HENRY. (05/04/60)

May 4, 1960

FRANCIS, APPELLANT,
v.
HENRY.



Appeal, No. 34, March T., 1960, from judgment of Court of Common Pleas of Fayette County, June T., 1957, No. 447, in case of Anthony Francis, administrator of estate of John Edward Francis, deceased v. Russell Henry, administrator of estate of Orpha Katherine Henry, deceased. Judgment reversed.

COUNSEL

Samuel J. Feigus, for appellant.

Herman M. Buck, with him Joseph W. Ray, Jr., and Ray, Buck & John, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 399 Pa. Page 370]

OPINION BY MR. JUSTICE MUSMANNO.

For many years Route 119, between Connellsville and Uniontown, consisted of a two-lane highway, divided down the middle to separate the northbound from the southbound traffic, but in 1956 the Department of Highways constructed between these two cities a parallel road to be used exclusively for the northbound traffic, while the old highway was to be confined to southbound traffic.

On September 15, 1956, Connellsville was to have a civic celebration of some kind and, in order to accommodate the expected increased traffic due to the celebration, the Highways Department decided to open the new thoroughfare on the preceding day. Accordingly, on September 14, 1956, road crews, under the direction of the district traffic engineer of the department, removed the barricades which had sealed the new road from motorists during its construction. At the same time they put up, at the southern terminus of the highway, signs and arrows directing northbound motorists to the newly built road and they posted, at the various entrances to the old road, signs warning

[ 399 Pa. Page 371]

    motorists not to enter. The same procedure, (with opposing directions, of course), was followed at the northern terminus of the highway.

The enjoyment of the improved and increased highway facilities was considerably marred on the very first day of their use by a fatal accident. A Mrs. O. Katherine Henry, traveling northwardly to Connellsville in a Ford station wagon, ignored the newly built road and took up the old road (now reserved for southbround traffic only). At a point about one-half mile before Connellsville, her car collided with a Mercury automobile being driven southwardly on that same road by John E. Francis. The violence of impact was such that both were killed outrightly. The administrator of the estate of John E. Francis brought a wrongful and death survival action against the administrator of the estate of Mrs. Henry.*fn*

At the ensuing trial the court nonsuited the plaintiff, and this appeal followed.

We do not believe that the non-suit was in order. In the case of Ehrlich v. U.S. Fi4. & Guar. Co., 356 Pa. 417 (1947), we quoted with approval what was said in Virgilio v. Walker and Brehm, 254 Pa. 241, 244-245, namely: "A non-suit can be entered... when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved."

Thus, the entering of a non-suit is one of the most drastic procedures accomplished in a courthouse and should not be invoked unless the plaintiff's case is so

[ 399 Pa. Page 372]

    obviously opposed to relevant principles of law, reason, natural law and the immutable sequence of cause and effect that it would be folly to consume time deliberating on it. Only a case destitute of the slightest merit in law can be brought to such an abrupt end. Of course, there are such cases, and the broom of non-suit is well used to sweep them out of the courtroom needed for the ...


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