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FEGELY v. COSTELLO (03/22/65)

decided: March 22, 1965.

FEGELY, APPELLANT,
v.
COSTELLO



Appeal from judgment of Court of Common Pleas of Lehigh County, June T., 1962, No. 77, in case of Pauline H. Fegely, administratrix of estate of Edwin A. Fegely, deceased, v. Robert Costello.

COUNSEL

Elias Magil, with him Martin H. Philip and Richard H. Rauch, for appellant.

Boyd H. Walker, with him Walker & Walker, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno dissents.

Author: O'brien

[ 417 Pa. Page 448]

At the close of the plaintiff-appellant's case, the court below entered a compulsory non-suit. The motion

[ 417 Pa. Page 449]

    to take off the non-suit was subsequently denied and this appeal followed.

An analysis of the testimony and the applicable law convinces us that the non-suit was properly entered.

It is well established that the mere happening of an accident, even when a moving vehicle strikes a pedestrian lying on the road, does not establish negligence by either presumption or inference. Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963). Furthermore, there is no inference of negligence even though the decedent is presumed to have exercised due care, which presumption would absolve the decedent, at this stage in the proceedings, from contributory negligence.

The duty owed by the defendant to the decedent must be viewed in light of the fact that the decedent appeared to the defendant as an "object", and to the plaintiff's witness as a "pile of rags" lying on the edge of the highway. It was not shown that the defendant was aware, or should have been aware, in time to stop his car, that the "object" was a man crawling along the edge of the highway.

In order to recover, plaintiff has the affirmative burden of establishing defendant's negligence, and that such negligence was the proximate cause of the injury complained of: Cushey v. Plunkard, 413 Pa. 116, 196 A.2d 295 (1964); Idlette v. Tracey, 407 Pa. 278, 180 A.2d 37 (1962). In the instant ...


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