Appeal, No. 79, March T., 1960, from judgment of Court of Common Pleas of Allegheny County, July T., 1955, No. 3491, in case of Sophie Castelli et vir v. Pittsburgh Railways Company. Judgment reversed.
Herbert N. Rosenberg, with him Sanford M. Lampl, and Rosenberg and Rosenberg, for appellants.
Leo Daniels, with him Pritchard, Lawler & Geltz, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE BELL.
This is an appeal by plaintiff from a judgment of non-suit. It is well settled that a non-suit can be entered only in a clear case and that in considering the
entry or the removal or the reversal of a non-suit the evidence must be considered in the light most favorable to the plaintiff and she must be given the benefit of every reasonable inference of fact arising therefrom and any conflict in the evidence must be resolved in her favor: Borzik v. Miller, 399 Pa. 293, 159 A.2d 741; Freund v. Huster, 397 Pa. 652, 156 A.2d 534; Seburn v. Luzerne & Carbon County Motor Transit Company, 394 Pa. 577, 148 A.2d 534. The law is clear; opinions occasionally differ as to its application, and consequently, the pertinent testimony must be reviewed.
Plaintiff was a passenger in defendant's trolley car; as a result of the collision between the truck and the trolley car plaintiff was knocked unconscious and her neck, head and back were injured.
The truck driver was undoubtedly guilty of negligence and his negligence was the proximate cause of the accident. Was the defendant's motorman guilty of negligence, and if so, was it a concurring cause of the accident? Carlson v. A. & P. Corrugated Box Corporation, 364 Pa. 216, 222, 223, 72 A.2d 290.
Plaintiff's proof of liability consisted solely of the testimony of a single witness, James B. DeSantis. He was standing on the sidewalk of Lincoln Avenue. He first saw the truck, which was a great big truck carrying debris, about 75 to 80 feet to his left. He first saw the trolley car when it was between 100 and 115 feet to his right. The truck and the trolley car were going in opposite directions. The truck was going north on the right-hand side of the street, with its right wheels partly on the right car track - the rail farthest away from the trolley car. A plank stuck out of its left side at least 3 feet. There was nothing ...