Appeal from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1961, No. 4277, in case of Grace Whitley v. Philadelphia Transportation Company.
Sheldon Tabb, with him Needleman, Needleman, Segal & Tabb, for appellant.
Walter E. Knecht, Jr., with him O'Keefe, Knecht & Ryan, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Jacobs, J. Wright and Watkins, JJ., would affirm on the opinion of President Judge Reimel.
[ 211 Pa. Super. Page 290]
Appellant was injured while a passenger on one of defendant's streetcars. The case was tried before the Honorable Theodore L. Reimel, President Judge of Court of Common Pleas No. 5 of Philadelphia County, and a jury. At the conclusion of appellant's case appellee moved for a compulsory non-suit which was granted by the trial judge. Appellant's motion to take off the non-suit was refused. In the opinion of the lower court the appellant had not met her burden of showing appellee's negligence because she had made prior inconsistent statements and the jury would have to conjecture as to which statement was true. The lower court further found that appellant had failed to prove that the appellee's alleged negligence was the proximate cause of her injuries and indicated that appellant had voluntarily assumed the risk.
In determining the propriety of the entry of a non-suit and the refusal of the court below to remove the
[ 211 Pa. Super. Page 291]
same we must read the testimony in the light most favorable to the appellant's case, giving her the benefit of all reasonable inferences flowing therefrom. Moss v. Reading Co., 418 Pa. 598, 212 A.2d 226 (1965); Downs v. Cammarano, 207 Pa. Superior Ct. 478, 218 A.2d 604 (1966). Viewed in that manner the testimony reveals the following to be the facts of the case.
The injury of which the appellant complains occurred about 10:45 p.m. on April 6, 1961. She boarded appellee's No. 34 streetcar trolley at 15th and Market Streets in the City of Philadelphia and seated herself on the right side of the car. Her destination was 56th Street and Baltimore Avenue. She arose from her seat when the car was on Baltimore Avenue about a third of a block from 56th Street. She rang the signal, walked to the front door and stood on the first step below the floor level of the car. The car was still in motion when she reached the first step and before it came to a halt at 56th Street the door unexpectedly flew open and hit her on the head.
Appellant stated on the stand that the door flew open before the car had come to a stop. However, in her complaint and in an interrogatory taken before trial she stated that the car had come to a halt to discharge passengers when she was struck. It was on the basis of this inconsistency that the court below found that the jury would have to conjecture as to which statement was true, and concluded that appellant had not sustained her burden of proving negligence. We believe that this conclusion was incorrect because appellant was confronted with the inconsistency while she was on the stand and reaffirmed her oral testimony that the door opened before the car came to a halt. Where a party or his witness has made inconsistent or contradictory statements and he is confronted with the contradiction he is entitled to have his case judged by
[ 211 Pa. Super. Page 292]
whichever statement he finally says is true. Black v. Philadelphia Rapid Transit Co., 239 Pa. 463, 86 Atl. 1066 (1913); Cox v. Wilkes-Barre Ry., 340 Pa. 554, 17 A.2d 367 (1941); Stewart v. Ray, 366 Pa. 134, 76 A.2d 628 (1950). In determining whether or not appellant met her burden of showing the ...