No. 502 April Term, 1977, Appeal from the Order Dated January 3, 1977, Dismissing the Motion to Remove the Judgment of Compulsory Non Suit of the Court of Common Pleas of Allegheny County, Civil Division at No. 3332 January Term, 1974.
James Victor Voss, Pittsburgh, for appellants.
James F. Malone, III, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Price, J., dissent. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 198]
Appellant contends that the lower court erred in granting a compulsory non-suit. Appellant argues that the jury should have considered the question of appellee's negligence and that she was not contributorily negligent as a matter of law. We agree, and, therefore, reverse and remand for a new trial.
On December 27, 1973, appellant*fn1 filed a complaint in trespass which alleged that appellee's negligent operation of his truck caused severe injuries to appellant. At trial on October 4, 1976, appellant produced the following evidence. On October 5, 1973, at 1:45 p. m., on a clear, dry day, appellant exited from the Oliver Building where she worked in downtown Pittsburgh. Sixth Street runs north and south in front of the Oliver Building where appellant emerged. Sixth Street is a four lane road although only two lanes were used for through traffic. Appellant was approximately 50 feet north from the intersection of Sixth Street and Smithfield Street which is controlled by a traffic signal. Appellant walked straight to the edge of the sidewalk; she observed that southbound traffic was stopped and that there was no northbound traffic. Appellant glanced to her right and noticed that pedestrians were crossing Sixth Street at its intersection with Smithfield Street at the traffic light. Appellant saw a large flatbed truck in front of her on Sixth Street. The truck was stopped in the inside lane of southbound traffic and there were stopped vehicles both in front of and behind the truck. No vehicles were in the southbound curb lane. Appellant stepped off the curb and attempted to get the attention of the truck's passenger. Having failed to hail him, she stepped back onto the sidewalk and turned toward Smithfield Street. After taking a few steps toward Smithfield Street, a woman cut diagonally in front of appellant, stepped into Sixth Street and began to cross in front of the truck. Upon observing the other
[ 253 Pa. Super. Page 199]
woman step into the street, appellant turned on the sidewalk to again face Sixth Street. She glanced at the truck and ascertained that it was still stopped and that the driver was looking directly ahead of him. Appellant stepped off the curb and followed the other woman across the street and in front of the truck. The next thing appellant remembered was being under the wheels of the flatbed truck. She suffered severe injuries.
Appellant also testified that there was a distance of about 2 or 2 1/2 feet between the truck and the vehicle in front of it. Appellant stated that she is 4'10" tall. There is some evidence that the window of the cab of the truck is higher than 5'10" from the ground.
A Pittsburgh policeman testified that on October 5, 1973, he was a passenger in a police car that was cruising north on Sixth Street. The police car crossed Smithfield Street and the officer then observed a human form rolling under the wheels of appellee's truck. He and his partner stopped the truck and called an ambulance. Another Pittsburgh police officer testified that he examined the truck after the accident. He found blood on the wheels of the bed of the truck and some debris near the wheel. The officer found no stains or debris on the front of the truck.
At the termination of appellant's evidence, the lower court entered a compulsory non-suit and dismissed the case. The court, en banc, ...