Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1972, No. 1277, in case of Robert Jurich v. United Parcel Service of New York, Inc., a corporation.
John E. Evans, Jr., with him Evans, Ivory & Evans, for appellant.
Frederick N. Egler, with him Paul R. Marks, and Egler & Reinstadtler, for appellee.
Watkins, P. J., Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. (Jacobs, J., absent). Opinion by Van der Voort, J. Price, J., dissents.
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Appeal is taken from judgment entered for appellee
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following the lower court en banc's denial of appellant's motion to remove a compulsory non-suit granted for appellee on October 15, 1974, by Judge SILVESTRI, sitting with a jury. Appellant was non-suited immediately following presentation of his case, a suit in trespass seeking damages for personal injury and property damage arising out of a collision between the parties' vehicles.
Our deliberations and consideration of the facts of this case will be governed by our recent statement in Paul v. Hess Brothers, Inc., 226 Pa. Superior Ct. 92, 94-95, 312 A.2d 65, 66 (1973):
"On appeal from a compulsory non-suit the plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiff's favor. McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232 (1951). A compulsory non-suit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion. McNett v. Briggs, 217 Pa. Superior Ct. 322, 272 A.2d 202 (1970)."
To justify the granting of a non-suit, it must appear from plaintiff's statement of his case that there is no evidence legally sufficient to maintain the action and to warrant the case going to the jury for fact-finding. Mazur v. Kann, 343 Pa. 376, 22 A.2d 707 (1941). Thus the case must go to the jury if there are presented sufficient facts which preponderate in favor of the plaintiff's statement of the case and in favor of liability of the defendant, which liability will be determined by the jury. Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959). If plaintiff does present such a prima facie case, it is the function of the jury to pass upon his credibility and persuasiveness. Fady v. Danielson Construction Co., 224 Pa. Superior Ct. 33, 302 A.2d 405 (1973).
Appellant testified that on April 6, 1972, between 10:00 and 10:30 A.M., good ...