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MCAULIFFE ET AL. v. CONSTANTINE (06/21/74)

decided: June 21, 1974.

MCAULIFFE ET AL., APPELLANTS,
v.
CONSTANTINE



Appeal from judgment of Court of Common Pleas of Westmoreland County, Jan. T., 1968, No. 513, in case of Ellen McAuliffe, now Ellen Crowe, in her own right and as parent and natural guardian of John Wayne McAuliffe, a minor, v. Darlene Constantine.

COUNSEL

George A. Conti, for appellants.

Patrick R. Riley, with him Costello & Berk, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 228 Pa. Super. Page 53]

The minor plaintiff in this suit, John Wayne McAuliffe, was struck by the defendant's automobile while

[ 228 Pa. Super. Page 54]

    he was attempting to cross the street in front of his house. At the conclusion of the plaintiff's case, the trial judge granted the defendant's motion for compulsory non-suit. The lower court en banc denied plaintiff's motion to take off the non-suit and this appeal followed. Since we believe it is possible for a jury to reasonably infer from the facts presented in the plaintiff's case that the defendant was guilty of negligence, we reverse.

The rule governing the removal of a non-suit on appeal has been clearly defined: "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." Cupelli v. Revtai, 218 Pa. Superior Ct. 277, 279, 275 A.2d 673, 674 (1971), quoting Cushey v. Plunkard, 413 Pa. 116, 117, 196 A.2d 295, 296 (1964). If a non-suit is entered due to lack of evidence to sustain the action, the lack of evidence must be so clear that it admits no room for fair and reasonable disagreement. Lasek v. Jaroschak, 192 Pa. Superior Ct. 350, 162 A.2d 25 (1960).

Reviewing the testimony presented by the plaintiff with these principles in mind, the following series of events is disclosed. At approximately 5:50 p.m. on March 11, 1966, John Wayne McAuliffe, then 7 years old, obtained some money from his mother to buy some cookies from a store which was a short distance away from his home on the opposite side of the street. In crossing from the east to the west side of the two-lane street, he was struck by defendant-appellee's car as she was driving in a southerly direction at about 25 miles per hour. At the point where John was hit, the paved street is between 19 and 22 feet wide and the east berm in front of the appellant's house is 24 feet wide. No cars were parked in front of the house. Although the

[ 228 Pa. Super. Page 55]

    boy had already crossed an entire lane of traffic before he was hit, the appellee testified that she did not see him until he was immediately in front of her car. She further testified that he was struck with the right bumper as he was moving from her left to her right. There were no other witnesses to the accident. The boy's body was found about 1 foot from the west berm, which he was attempting to reach, directly opposite his house.

The testimony indicated that although it was late afternoon on a dismal day, it was not dark enough to require headlights. There ...


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