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BERRY v. LINTNER (04/03/74)

decided: April 3, 1974.

BERRY, APPELLANT,
v.
LINTNER



Appeal from the judgment of Court of Common Pleas of Fayette County, March T., 1971, No. 396, in case of Nelson E. Berry, Administrator of Estate of Thomas E. Berry, Deceased, v. David N. Lintner.

COUNSEL

Joseph M. George, for appellant.

B. Frederick Becker, with him Fred C. Adams, and Coldren & Adams, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Jacobs, J.

Author: Jacobs

[ 226 Pa. Super. Page 563]

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.*fn1 We disagree, and, therefore, 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." McNett v. Briggs, 217 Pa. Superior Ct. 322, 324, 272 A.2d 202, 204 (1970). Applying this rule, the facts in the present case are as follows: On April 10, 1970, at approximately 9:45 p.m., plaintiff's decedent was struck and killed by an automobile driven by defendant, in a southerly direction, on route 51 near Perryopolis, Pennsylvania. The impact occurred approximately in the center of the outside western lane of the 48-foot wide 4-lane highway. Before the accident occurred, plaintiff's decedent had brought his truck, which was also heading in a southerly direction on route 51, to a stop on the western berm of the road because he was experiencing problems with one of the tires. He

[ 226 Pa. Super. Page 564]

    descended from the truck with a lighted flashlight, crossed part of the highway, turned around, and was walking back toward the truck, carrying a brown rock, when he was hit by defendant's automobile. Defendant's automobile was in the proper lane and its lights were on, but the defendant failed to see plaintiff's decedent until a moment before the impact. The impact knocked the body of plaintiff's decedent a distance of 95 feet. One of his shoes was found 125 feet from the point of impact and the flashlight was found 50 feet from the point of impact still lighted. Defendant brought his automobile to a stop 420 feet from the point of impact, but there was no evidence that any attempt had been made to stop the vehicle before the impact. The area where the accident occurred was a stretch of road on which the speed limit was 60 m.p.h., and there had been no oncoming cars for the last half mile before the accident.

The plaintiff has the burden of proving that the defendant was negligent, and the mere showing of an accident does not establish negligence. McNett v. Briggs, supra. Since the accident did not occur at an intersection, but on a highway, the defendant was not required to have his automobile under instant control. Gaev v. Mandell, 219 Pa. Superior Ct. 397, 281 A.2d 699 (1971). However, if a pedestrian before being hit has been on the highway for a long enough time so that a careful driver could see him and avoid the accident, then negligence has been established. McNett v. Briggs, supra. This is true even if the defendant is driving at a reasonable rate of speed. Schneider v. Sheldon, 380 Pa. 360, 110 A.2d 226 (1955).

After the plaintiff has presented his evidence, "[a] compulsory non-suit can be entered only in a clear case when the facts and inferences lead unerringly to but one conclusion." McNett v. Briggs, supra at 326, 272 A.2d at 204. The main issue, then, is whether the facts

[ 226 Pa. Super. Page 565]

    and inferences taken most favorably for the plaintiff point only to the conclusion that the decedent was not on the highway for a sufficient period of time so that a driver exercising ...


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