Appeal, No. 164, Jan. T., 1964, from judgment of Court of Common Pleas of Northampton County, July T., 1959, No. 27, in case of Frank Repyneck v. Robert Tarantino, trading as Robert Tarantino Memorial Studio, Marlin C. Engler and John F. Posh. Judgment affirmed.
Morris Mindlin, with him Mindlin, Sigmon, Briody & Littner, for appellant.
Norman Seidel, with him David B. Skillman, for appellee.
Before Bell, C.j., Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
This is an appeal by plaintiff from a judgment of non-suit entered in favor of each of the defendants.
Plaintiff was an employee of Posh Construction, Inc., which had entered into a contract with Tarantino to move a cemetery monument to his property. Plaintiff suffered serious injuries when, in the course of his employment, he touched the cab of a large power crane, whose boom had come in contact with overhead high voltage electrical wires. Plaintiff brought suit against (1) Engler, who was his fellow employee and the operator of the crane, and (2) Posh, as a supervisory employee of their common employer, Posh Construction, Inc., and (3) Tarantino, the owner of the real estate - alleging negligence on the part of each defendant. Plaintiff did not sue Posh Construction Company because he was covered by Workmen's Compensation.
In Markle v. Robert Hall Clothes, 411 Pa. 282, 191 A.2d 374, the Court, quoting from Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289, said (page 284): "'It is hornbook law that a judgment of non-suit can be entered only in clear cases and plaintiff must be given
the benefit of all evidence favorable to him together with all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor: Castelli v. Pittsburgh Railways Company, 402 Pa. 135, 165 A.2d 632; Stimac v. Barkey, 405 Pa. 253, 174 A.2d 868; Borzik v. Miller, 399 Pa. 293, 159 A.2d 741.
"'The law is likewise clear that the plaintiff has the burden of proving by a fair preponderance of the evidence that defendant was negligent and that his negligence was the proximate cause of the accident: Stimac v. Barkey, 405 Pa., supra; Schofield v. King, 388 Pa. 132, 130 A.2d 93.'"
A review of the record with these principles in mind convinces us that the lower Court correctly ...