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decided: March 23, 1967.


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.

Author: Spaulding

[ 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 Pa. 134, 153 A.2d 477

[ 209 Pa. Super. Page 381]

(1959), the Supreme Court presented a new standard of evidentiary adequacy for submission of a case to a jury. In so doing, the Court expressly overruled a line of cases which required the plaintiff to show that his allegation was the only reasonable inference which could be drawn from the facts. Mr. Justice McBride stated: "The formula that 'the circumstances must be so strong as to preclude the possibility of injury in any other way and provide as the only reasonable inference the conclusion plaintiff advances' is not a correct statement of the rule to be applied by the judge on deciding a motion for either a non-suit or binding instructions. If that were the rule what would be the province of the jury? In no case where there was more than one reasonable inference would the jury be permitted to decide. Insofar as this rule is stated in our cases it is disapproved.*fn3

"We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but that there must be evidence upon which logically its conclusion may be based. [citing cases]. Clearly this does not mean that the jury may not draw inferences based upon all the evidence and the jurors' own knowledge and experiences, for that is, of course, the very heart of the jury's function. It means only that the evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by the plaintiff, and not that that conclusion must be the only one which logically can be reached." (Emphasis in original.)

"It is not necessary under Pennsylvania law, that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability.

[ 209 Pa. Super. Page 382]

. . . The facts are for the jury in any case whether based upon direct or circumstantial evidence where a reasonable conclusion can be arrived at which would place liability on the defendant. It is the duty of the plaintiff to produce substantial evidence, which, if believed, warrants the verdict he seeks. The right of a litigant to have the jury pass upon the facts is not foreclosed just because the judge believes a reasonable man might properly find either way. A substantial part of the right to trial by jury is taken away when judges withdraw close cases from the jury. Therefore, when a party who has the burden of proof relies upon circumstantial evidence and inferences reasonably deducible therefrom, such evidence, in order to prevail, must be adequate to establish the conclusion sought and must so preponderate in favor of that conclusion as to outweigh in the mind of the fact-finder any other evidence and reasonable inferences therefrom which are inconsistent therewith. This rule has been applied in substance in many cases. See Miller v. Hickey, 368 Pa. 317, 81 A.2d 910; Rockey v. Ernest, 367 Pa. 538, 541, 80 A.2d 783; Turek v. Pennsylvania R. R. Co., 361 Pa. 512, 64 A.2d 779; Randolph v. Campbell, 360 Pa. 453, 62 A.2d 60."*fn4 (Emphasis added.)

Smith involved an appeal by the plaintiff from a compulsory non-suit. However, the latter part of the

[ 209 Pa. Super. Page 383]

    opinion which refers to the "burden of proof" and the evidence needed "in order to prevail" embodies a different standard for a totally different purpose. Here the Court was discussing the requisite evidence to support a verdict.*fn5

The Smith non-suit standard has been consistently followed and the second standard, although dictum, has received frequent application.*fn6

[ 209 Pa. Super. Page 384]

The distinction between the twin standards of Smith -- the amount of proof required to support submission of a case to a jury and the proof required to substantiate a verdict rendered by it -- is fundamental. However, the standards often are used indiscriminately under the expression "burden of proof".*fn7 Under Smith, the initial standard is satisfied and the case properly submitted to the jury "where a reasonable conclusion can be arrived at which would place liability on the defendant." The second standard is not fulfilled until the evidence presented so preponderates in favor of the conclusion sought as to outweigh in the mind of the fact finder any other evidence.

Cognizant of the separate standards of Smith and aware that only the first standard is before us, we turn to the instant case.


The court below, although mentioning Smith, placed principal reliance on Cuthbert v. Philadelphia, 417 Pa. 610, 209 A.2d 261 (1965). In Cuthbert, the Court reversed a verdict for the plaintiff, having concluded that causation had not been proved. The scope of Smith was not affected because a non-suit was not involved.

[ 209 Pa. Super. Page 385]

Applying the non-suit standard of Smith, the record does not support the conclusions of the trial court.

Mrs. Devenney's testimony that she saw a ball on the ground behind her immediately after being struck which she had not previously noticed supports the reasonable inference that this ball was the striking object.

That it was defendant's ball which struck Mrs. Devenney is also supported by evidence. Her testimony that she observed boys inside the stand who were throwing balls back towards the front is consistent with the inference that one of these balls hit her. The testimony that there were no other ball throwing stands in the area strengthens this inference.

Finally, her statement that there were two men behind the counter and several "little children -- boys" in the stand who were "gathering the balls up and throwing them back" leads to the conclusion that the boys were in the control, if not the employ, of defendant. The admission by one of the counter men that they "had some kids there" who were picking up balls, threw one, and hit her solidifies this conclusion.

It is well settled that a non-suit should be entered only in clear cases and the plaintiff must be given the benefit of all favorable evidence and reasonable inferences therefrom. Any evidentiary conflict must be resolved in favor of the plaintiff. Calloway v. Greenawalt, 418 Pa. 349, 211 A.2d 435 (1965); Steiner v. Pittsburgh Railways Company, supra; Flagiello v. Crilly, supra.

We conclude the plaintiffs have discharged their initial burden of producing evidence and were entitled to have their case submitted to the jury.

Decision reversed and new trial granted.


Decision reversed.

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