Appeal from order of Court of Common Pleas of Washington County, May T., 1961, No. 366, in case of James H. Devenney et ux. v. North Franklin Township Volunteer Fire Department, Inc.
Wray G. Zelt, III, with him Zelt & Zelt, for appellants.
Robert L. Ceisler, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Spaulding, J. Wright, J., would affirm on the opinion of President Judge Sweet.
[ 209 Pa. Super. Page 379]
This is an appeal by plaintiffs James and Elizabeth Devenney from the trial court's refusal to remove a compulsory non-suit.
On July 9, 1960, Mrs. Devenney took her children to a public fair operated by defendant near Washington, Pennsylvania. While there, she was struck on the back of the head and neck by an object. At the time, she was standing approximately ten feet from a concession stand directly behind her where the public could throw balls at bottles and win prizes. After being hit, she turned around and saw a ball on the ground
[ 209 Pa. Super. Page 380]
next to her. She had not noticed its presence prior to the accident. There was no evidence of other ball throwing stands in the vicinity.
Mrs. Devenney testified that the stand was operated by two men and that several small boys were inside retrieving balls and throwing them back to the front of the stand.*fn1 Her son, James,*fn2 did not see the accident but approached the stand immediately thereafter and asked the two men behind the counter why they had hit his mother. According to him, they replied: "They said they didn't hit her, they had some kids there, was picking up balls and thrown one, [sic] hit her."
After the presentation of plaintiffs' case, the trial judge granted a compulsory non-suit which the court en banc refused to remove. Refusal was based on the conclusion that: "There was no proof that it was a ball which hit Mrs. Devenney in the neck; if it was a ball, there was no proof it was the defendant's ball; if it was the defendant's ball, there was no proof that the thrower was in any way connected with the operation of the bottle game or that he was under the control of the defendants." (Emphasis added.)
In the landmark case of Smith v. Bell Telephone Company of Pennsylvania, 397 ...