Appeals, Nos. 135, 136, 137 and 138, March T., 1960, from judgments of Court of Common Pleas of Allegheny County, July T., 1956, No. 451, in case of Mary Lee DiGiannantonio, a minor, et al. v. Pittsburgh Railways Company et al. Judgments reversed.
Murray S. Love, with him Wirtzman & Sikov, for appellants.
Leo Daniels, with him James A. Geltz, and Prichard, Lawler & Geltz, for appellees.
Before Jones, C.j., bell, musmanno, jones, cohen, bok/ and Eagen, JJ.
OPINION BY MR. JUSTICE COHEN.
Plaintiffs sued to recover damages for personal injuries alleged to have been sustained as a result of the defendant's negligence. At the conclusion of plaintiffs'
case, the trial judge entered a compulsory non-suit which the court en banc subsequently refused to remove. From the judgments entered the plaintiffs have appealed and the sole question involved is whether the evidence adduced by plaintiffs was sufficient to create an issue of fact as to whether their injuries were due to defendant's negligence.
This action arose as a result of a collision which occurred at the intersection of East Carson Street and 26th Street in the City of Pittsburgh. An automobile owned and operated by the husband-plaintiff, in which the wife-plaintiff and child-plaintiff were riding as passengers, while making a left turn from East Carson Street into 26th Street, was struck on the right front side by the defendant's streetcar, which was proceeding in an easterly direction on East Carson Street.
The reasons given by the trial court for the granting of a non-suit were (a) a conflict between the testimony of the husband-plaintiff and the testimony of the plaintiffs' liability witnesses relating to the issue of defendant's negligence and (b) plaintiffs' failure to meet their burden of proving that the alleged negligence was the proximate cause of the injuries. In reviewing the action of the court below, we accept certain well established principles of law to guide us: (1) the evidence, together with all reasonable inferences therefrom, must be viewed in the light most favorable to plaintiffs; (2)the mere happening of an accident does not constitute evidence of negligence and the burden was on plaintiffs to prove both that the defendant was negligent and that his negligence was the proximate cause of the accident; (3) a compulsory non-suit should be entered only in a clear case. Dunmore v. McMillan, 396 Pa. 472, 152 A.2d 708 (1959).
Plaintiffs' evidence and the reasonable inferences therefrom, viewed in the most ...