Appeal from order of Court of Common Pleas of Lebanon County, Sept. T., 1964, No. 386, in case of Paul H. Engle and Ruth V. Engle, his wife v. Sebastiano Spino.
Bernerd A. Buzgon, with him Davis & Katz, for appellants.
L. E. Meyer, with him Meyer, Brubaker & Whitman, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno dissents.
This is an appeal from the Order of the lower Court refusing to remove a judgment of non-suit. Plaintiffs brought an action of trespass to recover damages for personal injuries sustained by the wife-plaintiff, as well as property damage and medical expenses sustained by her husband as the result of an automobile accident which occurred June 13, 1964, at the intersection of Township Route 117 and U. S. Route 322 in the village of Campbelltown, Lebanon County, Pennsylvania.
Plaintiff-wife was driving north on Route 117 intending to turn west on U. S. Route 322. Defendant
was driving east on U. S. Route 322. Route 117 is a two-lane highway controlled by a stop sign. U. S. Route 322 is a two-lane through highway.*fn* At the time of the accident, it was raining slightly. Plaintiff's automobile came to rest in a field off the northeast portion of the intersection; defendant's automobile came to rest facing in a westwardly direction in the westbound lane of traffic east of the intersection. The body of the wife (plaintiff) was on the berm of the northeast portion of the intersection; debris was scattered in the northeast quadrant of the intersection. When wife-plaintiff testified, she stated that she had no recollection of the accident. Defendant and his wife who was in his car did not testify and were not called on cross-examination. At the conclusion of plaintiffs' case the lower Court granted defendant's motion for a non-suit and thereafter refused to take it off. Plaintiffs then appealed to this Court.
Plaintiffs contend that the lower Court abused its discretion in refusing to take off the non-suit "since the jury reasonably could have concluded from the uncontradicted evidence elicited in plaintiffs' case that defendant was negligent and that such negligence was the proximate cause of the accident."
In Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289, the Court said (pages 390-391): ". . . 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,
A.2d 632; Stimac v. Barkey, 405 Pa. 253, 174 A.2d 868; Borzik v. Miller, 399 ...