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CUPELLI v. REVTAI (03/23/71)

decided: March 23, 1971.

CUPELLI, APPELLANT,
v.
REVTAI



Appeal from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1966, No. 659, in case of Francesco Cupelli, administrator of the estate of Silvio Cupelli, deceased, on behalf of said estate; and Francesco Cupelli, administrator, on behalf of the next of kin of Silvio Cupelli, deceased; and Francesco Cupelli, in his own behalf v. George Revtai.

COUNSEL

Alan Frank, for appellant.

Randall J. McConnell, Jr., with him Dickie, McCamey & Chilcote, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 218 Pa. Super. Page 278]

This suit arose as the result of an accident in which plaintiff's decedent, a six year old boy, was struck in

[ 218 Pa. Super. Page 279]

    the street by a pickup truck operated by defendant-appellee. The boy was rendered unconscious by the impact and died nine days later, never having regained consciousness.

At the conclusion of appellant's case on liability, appellee's motion for a compulsory non-suit was granted. Appellant's subsequent motion to remove the non-suit was denied, and this appeal followed.

"A non-suit should be entered only in a clear case, and, on appeal from the refusal to take off a compulsory non-suit, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of plaintiff." Cushey v. Plunkard, 413 Pa. 116, 117, 196 A.2d 295, 296 (1964). Where a compulsory non-suit is entered for lack of evidence to sustain the action, the evidence must be so clear that there is no room for fair and reasonable disagreement. Lasek v. Jaroschak, 192 Pa. Superior Ct. 350, 162 A.2d 25 (1960).

Giving plaintiff the benefit of every reasonable inference that a jury might derive from the evidence and resolving all doubts in his favor, the facts are as follows: Appellee was driving his pickup truck on a two-way, two-lane street with a gradual downhill slope. The street is twenty to twenty-five feet wide. Proceeding downhill, there is a sidewalk about five feet wide on the right-hand side. Decedent, accompanied by his father (appellant) and younger brother, was walking on this sidewalk on his way home from school. There was no other traffic or anything which could have obstructed appellee's vision, and he had a clear view of the group from about 200 feet away.

Appellant indicated that he was holding his childrens' hands as they walked, but that at a point opposite their house the decedent started across the street. The father did ...


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