decided: November 27, 1968.
Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1961, No. 1990, in case of William G. Duff v. Charles N. Caputo et al.
Melvin Schwartz, with him Cooper, Goodman & Schwartz, for appellant.
Robert E. Wayman, with him Wayman, Irvin, Trushel & McAuley, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Justice Musmanno did not participate in the decision of this case. Dissenting Opinion by Mr. Justice Eagen. Mr. Justice O'Brien and Mr. Justice Roberts join in this dissent.
Author: Per Curiam
[ 433 Pa. Page 8]
Judgment affirmed by an equally divided court.
Dissenting Opinion by Mr. Justice Eagen:
The lower court entered judgment for the defendants notwithstanding the jury's verdict in favor of the plaintiff. The court felt that the evidence established that the plaintiff was guilty of contributory negligence as a matter of law. In my view, this disposition was erroneous.
It is fundamental that contributory negligence exists as a matter of law only where there is no reasonable basis for holding otherwise under the facts of the case. Cushey v. Plunkard, 413 Pa. 116, 196 A.2d 295 (1964). I am not convinced that under all of the circumstances disclosed by the evidence in the instant case that there is no room for "fair and reasonable disagreement" as to the plaintiff's negligence.
I dissent, and would reverse the judgment of the lower court and would enter judgment on the verdict returned by the jury.
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