No. 2069 October Term, 1976, Appeal from the Order dated June 21, 1976, of the Court of Common Pleas of Chester County, Civil Division, Refusing to take off compulsory non-suit at No. 168 September Term 1971.
Michael J. Pepe, Jr., Philadelphia, for appellant.
Roger E. Legg, Exton, for appellee, Walter J. Miller.
Michael B. Kean, West Chester, for appellee, Gloria F. Riccardo.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 175]
In this action of trespass for alleged negligence, the lower court granted defendant-appellees' motion for a non-suit. The motion was made at the conclusion of plaintiff's case.
[ 260 Pa. Super. Page 176]
When the lower court refused to remove the non-suit, this appeal followed.
This action arose out of an automobile accident which the plaintiff-appellant claimed was caused by the negligence of the defendant-appellees in the operation of their respective cars. The non-suit was entered apparently because of the failure of plaintiff to prove that the respective defendants were owners of the cars involved in the accident.*fn1
Paragraph Five of the complaint alleged that Miller was the owner of an automobile which he was negligently operating, striking the rear of plaintiff's automobile. Miller filed no answer.
Paragraph Six of the complaint alleged similarly that Riccardo was the owner of an automobile which she was negligently operating causing her vehicle to collide with the right side of plaintiff's vehicle. Riccardo filed an answer stating that she was the owner and operator of an automobile proceeding in a southerly direction on Route # 202, but denied that she negligently operated her automobile or that it collided with plaintiff's vehicle. Where the plaintiff moves to take off a non-suit in a personal injury action, plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence and all conflicts must be resolved in his favor. Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970).
The grant of the non-suit in appellee Miller's favor was clearly error. When Paragraph Five of the complaint was offered into evidence as undenied, the trial judge held it inadmissible to establish the identity of the person by ...