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GREGORICH v. PEPSI-COLA METROPOLITAN BOTTLING COMPANY (09/23/74)

decided: September 23, 1974.

GREGORICH, APPELLANT,
v.
PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC.



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1971, No. 2174, in case of Joseph Gregorich v. Pepsi-Cola Metropolitan Bottling Company, Inc.

COUNSEL

Chester S. Fossee, with him Murovich, Reale & Fossee, for appellant.

William C. Walker, with him Dickie, McCamey & Chilcote, for appellee.

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

Author: Hoffman

[ 230 Pa. Super. Page 146]

This appeal challenges the validity of the non-suit judgment entered by the court below at the close of plaintiff's case.

The plaintiff was seriously injured when he was struck by defendant's truck as he was crossing a snow-covered road in Pittsburgh in order to board a bus to work. On the day of the accident, December 24, 1969, at about 6:45 a.m., it was cold, dark and snowing. West Carson Street was covered with snow which was piled up against the curb so as to make the roadway accessible to only one lane of traffic in each direction. At the northerly side of West Carson Street there was no pedestrian footwalk, but only a curb and a fence separating the road from a stretch of railroad tracks. There was bus transportation traveling both westwardly and eastwardly on the street, and boarding indentations had been cut into the curb and fence at various intervals. Because of the snow, however, the indentations located a safe distance from the driving portion of the roadway were inaccessible on the day in question.

A few minutes before the mishap, an outbound bus had come to a stop at the bus stop and put on its flashing lights. Almost immediately thereafter, an inbound bus pulled into the southern curb and turned on its flashing lights so as to permit the boarding and discharging of passengers. Because of the high snow at the curbline, the buses were a distance from the curb in a position whereby the front end of the inbound bus was in lineal parallelism to the front end of the outbound bus.

With the buses so situated plaintiff attempted to cross the roadway in the middle of the intersection so as to reach the outbound bus. As a result of the injuries

[ 230 Pa. Super. Page 147]

    he sustained, he was unable to recall the entire incident. A motorist, however, who came to a stop behind the outbound bus, served as plaintiff's only spokes-woman as to the operative facts of the accident.

She testified that she first saw the plaintiff when he was a step or two in front of the inbound bus. She observed that the plaintiff was walking quickly. At about the same moment, she noticed the defendant's truck come from behind the stopped inbound bus. The truck, proceeding approximately 20-25 miles per hour and straddling the middle line of the roadway, attempted to pass between the two stopped buses. While in the process of passing this bus, the truck struck the plaintiff. The witness was able to say that the point of impact was approximately "a step" from the outbound bus. The truck had traversed the center line of the highway, striking the plaintiff while it was on "the wrong side of the road". She testified that she did not notice whether or not the plaintiff looked to his right and left to observe oncoming traffic, but she did conclude that a "split-second" later plaintiff would have safely reached the bus.

After this eyewitness to the accident testified, plaintiff rested his case. The defendant immediately moved for a non-suit alleging that either plaintiff had failed to prove the negligence of the defendant in so negotiating its vehicle or that plaintiff had supplied sufficient evidence in his case to establish contributory negligence as a matter of law. The trial judge granted defendant's motion, and subsequently refused plaintiff's motion to remove the judgment of compulsory non-suit. This appeal has followed.

In reviewing a judgment for compulsory non-suit, we are guided by the general rule that 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

[ 230 Pa. Super. Page 148]

    of the plaintiff. Idlette v. Tracey, 407 Pa. 278, 180 A.2d 37 (1962); Fullard v. Pittsburgh Urban Redevelopment Authority, 222 Pa. Superior Ct. 184, 293 A.2d 118 (1972). As such, a compulsory non-suit may be entered only in a clear case and only where there is no doubt as to the inference to be drawn from the ...


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