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decided: June 28, 1976.



H. Ray Pope, Pope & Pope, Clarion, for appellant.

Charles R. Alexander, Alexander, Garbarino & Kooman, Clarion, for appellee.

Cercone, Judge.

Author: Cercone

[ 241 Pa. Super. Page 88]

The instant appeal arises from a jury verdict which specially found that the defendant was negligent, and that the plaintiff was contributorily negligent. Because that verdict was amply supported by the evidence, and appellant points to no reversible error of law committed by the trial court, we will affirm.

The facts of the case, cast in the light most favorable to appellee,*fn1 are as follows: On November 25, 1971, at approximately 7:45 P.M., plaintiff-appellant, Bonnie Trayer, and her friend, Pamela Best, were walking along a semi-rural, two-lane road when both were struck by a truck owned by appellee, and driven by his employee Darl Horner. Miss Trayer and Miss Best were enroute to Miss Best's home in the expectation of later meeting another friend, Bernie Bussard. The roadway that Thanksgiving night was wet from a recent snowfall and dirty with cinders. Both girls were walking along the left-side of road facing oncoming traffic, but were clad in dark blue jackets. Prior to the accident a car driven by John Elmadollar in which Bernie Bussard was riding passed the girls traveling in the same direction, and pulled to the right-hand side of the road, its high beams glaring. According to a witness in a nearby house who was washing the dishes from the evening meal, the car remained

[ 241 Pa. Super. Page 89]

    in that position for ten minutes immediately before the accident. The investigating officer testified that the window on the driver's side was rolled down when he arrived at the scene, a curious fact in light of the weather and road conditions. The driver of the truck which struck the girls testified that the girls were in the road in his lane of travel, and not on the shoulder (which was only two feet wide in the area of the accident), when he struck them. They were standing, he testified, approximately parallel to the door of the Elmadollar car which was stopped on the other side of the road. However, Horner could not see then prior to hitting them because he was blinded by the Elmadollar car's high beams. Indeed, he had flashed his own high beams on and off in an effort to signal the driver of the car to dim his lights, but to no avail. It was only immediately before impact that Miss Best realized that the truck would not avoid striking her and appellant, and she unsuccessfully attempted to pull appellant from its path. Miss Best also testified that she would not have been injured were it not for her brave attempt to save appellant.

On these facts it is obvious that the jury inferred that Miss Trayer had been inadvertent to a danger (the oncoming truck) which an ordinary, prudent person would have been aware of, and would have taken care to avoid; and, that such conduct created an undue risk of harm to appellant. W. Prosser, Torts 418 (4th ed. 1971). The evidence offered to circumstantially prove that appellant was distracted because of her conversation with the boys in the car supplied an explanation for her inadvertence and was obviously relevant. See generally I Wigmore on Evidence §§ 24-36 (1940). As such, the evidence which tended to indicate that the girls were conversing with the boys prior to the accident was admissible to support the inference that Miss Trayer was negligently inattentive, and was properly admitted without reference to whether that evidence proved by a preponderance

[ 241 Pa. Super. Page 90]

    that appellant was standing in the road for the purpose of talking to the boys. Id. at §§ 28-29. The evidence established that appellee's truck collided with appellant when she was standing in the highway, darkly attired, in the path of appellee's oncoming truck while its lights were flashing from high to low beams, and that appellant made no attempt to extricate herself by stepping aside and thus avoiding what appellant should have realized was an obvious danger. The circumstantial evidence of conversation with the boys served to fortify that conclusion, so it was clearly admissible. 1 Henry, Pennsylvania Evidence § 26 (1953).

Appellant argues next that, even conceding the above to be true, she had an equal "right" to be in the roadway, so her conduct in remaining there was not negligent. This, as the case law demonstrates, is a non sequitur. Our Supreme Court stated in Koppenhaver v. Swab, 316 Pa. 207, 210-11, 174 A. 393, 394 (1934):

"It is quite true that a pedestrian's rights upon a paved roadway are equal to those of a vehicle under given circumstances. A pedestrian cannot, with impunity, walk or stand on a country roadway in the face of a known approaching vehicle. He must act as a reasonably prudent person would act under like circumstances. While a person on a highway is not bound to anticipate and guard against the negligence of another, and has the right to assume that drivers of vehicles will exercise ordinary care to protect one from injury, nevertheless a pedestrian walking or standing on a public highway in the country is bound to use reasonable care not only to observe automobiles that are approaching, but to be alert for automobiles approaching from the rear. There is no situation more dangerous to ...

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