Appeal from judgment of Court of Common Pleas of Tioga County, Sept. T., 1969, No. 82, in case of Perry McNett, administrator of the estate of Marvin L. McNett, deceased, v. Larry Briggs.
Harold B. Fink, Jr., for appellant.
George Linton, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Wright, P. J., would affirm on the opinion of President Judge Webb.
[ 217 Pa. Super. Page 324]
In this case plaintiff appeals from the refusal of the court below to remove a compulsory non-suit entered for defendant who was the driver of an automobile which struck and killed plaintiff's decedent. The lower court held that the plaintiff had not proved any negligence on the part of the defendant and that decedent was contributorily negligent as a matter of law. We reverse.
On appeal from the grant of a compulsory non-suit we consider the evidence, and all the reasonable inferences therefrom, in the light most favorable to plaintiff. Gatens v. Vrabel, 393 Pa. 155, 142 A.2d 287 (1958). Thus viewed, the facts were as follows: This unfortunate accident occurred on January 16, 1969, at about 11:00 p.m. At that time defendant was operating his automobile, a Volkswagen, in an easterly direction on a straight stretch of East Avenue, a 30-foot wide highway, in the Borough of Wellsboro. At a point midway between intersecting streets he struck plaintiff's decedent. Defendant's automobile was at all times in his proper lane and was brought to a stop
[ 217 Pa. Super. Page 325]
within 78 feet after impact while still in that lane. The weather was clear and the road surface dry. Decedent was struck in defendant's lane about one step from the center line. The sole eyewitness to the accident testified that he observed defendant's automobile approaching while it was 40 yards away; defendant had his lights on; decedent was thrown 15 feet into the air when struck, and continued in the air until his body came to rest behind defendant's automobile; the only time the witness saw decedent was when he was 4 feet in front of defendant's automobile; the speed limit in the area was 35 m.p.h.; he could not tell if decedent was in motion or standing still at the time he saw him; and, there were no skid marks. He further testified that there were black marks on the highway at the place where decedent was hit. He described the marks as follows: "Just elongated marks approximately six inches in length, one in front of the other. As if walking across the road." He then drew a diagram of the marks showing them as extending in a north-south direction south of the center line, one mark being south of the other. There was very little light at the place of collision. One witness said the decedent wore dark clothing; another witness said he wore clothes that "weren't very visible at night." The decedent's body came to rest 63 feet east of the point of impact and 10 to 15 feet to the rear of defendant's automobile, which had a dent in the hood and a cracked windshield. Decedent had a broken leg, contusions and laceration of the head, and brain damage. He died within 24 hours after the accident.
The plaintiff has the burden of proving that the defendant was negligent. Flagiello v. Crilly, 409 Pa. 389, 187 A.2d 289 (1963). Negligence is not established nor is an inference of negligence raised by the mere happening of an accident. Id. at 390, 187 A.2d at 290.
[ 217 Pa. Super. Page 326]
There was nothing in the record which would indicate that unusual precautions were required on the part of the driver and, since the accident occurred between intersections, the driver was not bound to have his automobile under instant control to avoid pedestrians. O'Farrell v. Milgram, 353 Pa. 468, 46 A.2d 165 (1946). Where a pedestrian is struck between intersections, the pedestrian must have been on the highway long enough to have been seen by a careful driver in time to avoid hitting him in order to hold the driver liable. Zalec v. Heckel, 340 Pa. 116, 16 A.2d 382 (1940); Gatens v. Vrabel, supra at 158, 142 A.2d at 288. The presumption of due care to which decedent is entitled does not constitute any proof of the defendant's negligence and has no significance until plaintiff has made out a prima facie case of defendant's negligence. Duda v. Carothers, 379 Pa. 248, 108 A.2d 791 (1954). A compulsory non-suit can be entered only in a clear case when the facts and inferences lead unerringly to but one conclusion. Schneider v. Sheldon, 380 Pa. 360, 110 A.2d 226 (1955).
In his argument plaintiff asserts that the injuries were caused by defendant's negligence in exceeding the speed limit and in failing ...