Appeal, No. 314, Jan. T., 1962, from judgment of Court of Common Pleas of Lancaster County, Oct. T., 1954, No. 66, in case of William R. Miller v. McMinn's Industries, Inc. Judgment affirmed.
Harold E. Martin, for appellant.
F. Lyman Windolph, with him Windolph, Burkholder & Hartman, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. JUSTICE O'BRIEN
Appellant suffered a crushed left foot and leg when he was struck by a roller on October 24, 1952. To recover for his injuries, he instituted an action of trespass against appellee, the owner of the roller, whose employee was operating it at the time of the accident. The matter was tried before the Honorable WILLIAM G. JOHNSTONE, JR., and a jury, on October 2, 1961. Only the appellant testified, and at the conclusion of his testimony as to the circumstances of the accident, he rested as to liability. Appellee's motion for compulsory non-suit was granted by the trial judge and, upon denial by the court en banc of appellant's motion to take off the non-suit, the instant appeal was instituted.
We have often stated that in passing upon the propriety of a judgment of compulsory non-suit, we are guided by well established principles: (1) a non-suit should be entered only in a clear case: DiGiannantonio v. Pittsburgh Railways Company, 402 Pa. 27, 166 A.2d 228 (1960); Haddon v. Lotito, 399 Pa. 521, 161 A.2d 160 (1960); Dunmore v. McMillan, 396 Pa. 472, 152 A.2d 708 (1959); (2) on appeal from a refusal to take off compulsory non-suit, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of plaintiff. Idlette v. Tracey, 407 Pa. 278, 180 A.2d 37 (1962); Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21 (1962); Smith v. Pittsburgh Railways Company, 405 Pa. 340, 175 A.2d 844 (1961); Donaldson v. Maffucci, 397 Pa. 548, 156 A.2d 835 (1959).
Reviewing the record in the light of the above principles, we find the facts to be these. Appellant was employed as an inspector by the Department of Highways of the Commonwealth. Appellee was the contractor on a particular road construction project for
the Department and appellant was assigned to inspect the work. On the day of the accident, appellee was engaged in black-topping a section of highway and was employing a machine known as a Barber-Greene Finisher. This is a large machine which spans the entire traffic lane being surfaced. The asphalt material is dumped into a hopper at the front of the machine, whence it passes through the machine and is dispensed from the rear onto the highway.
The third lane of the highway was being surfaced on the day in question and the fourth or southernmost lane was closed to traffic because of the construction work. The work was proceeding in daylight on a clear, cold, dry day and the section of highway under construction was level. The Barber-Greene machine was proceeding from east to west in the course of laying the black top and was being followed by a ten ton roller. The roller was about forty feet behind or to the east of the Barber-Greene and was partly in the third lane but mostly in the fourth lane. The roller was engaged in rolling the seam between the newly laid asphalt and the concrete of the fourth lane. The roller was so constructed that a water jacket obstructed the view of its operator and made it impossible for him to observe objects or persons immediately in front of it. The accident occurred very shortly after the commencement of that day's operations. Appellant, who was experienced in his job, knew that when the Barber-Greene began to move, the roller would, in ordinary course, begin its following movement.
Appellant's duty was to measure the thickness of the asphalt and to measure and record the temperature of the material. He measured the thickness of the material by standing on a catwalk on the back of the Barber-Greene and putting a ruler into the material as it was spread. The temperature was measured by placing a ...