December 14, 1979
STEPHANIE SPLAWSKI (RUSSO), APPELLANT
MICHELLE L. SNYDER AND SHANNETTE L. SNYDER, APPELLEES
No. 1529 October Term, 1978, Appeal from the Court of Common Pleas of Northumberland County, at No. 64, October Term, 1976.
Before Price, Spaeth and Watkins, JJ. Spaeth, J. files a dissenting statement
DECISION OF LOWER COURT AFFIRMED BASED ON THE ABLE OPINION OF Judge Woodring.
Spaeth, J. files a dissenting statement
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY CIVIL DIVISION - LAW
STEPHANIE SPLAWSKI (RUSSO), Plaintiff Vs. MICHELLE L. SNYDER and SHANNETTE L. SNYDER, IN TRESPASS.
No. 64 October Term, 1976
Opinion OF THE COURT EN BANC
This Northampton case was tried by a jury before the Honorable Carleton T. Woodring on October 12, 1977. At the close of the Plaintiff's case, the Court granted a defense motion for a compulsory non-suit. The matter is now before us on Plaintiff's motion to remove the non-suit.
The facts as elicited at the trial are as follows:
At 2:40 A.M. on January 31, 1976, the Plaintiff, Stephanie Splawski, was a passenger in an automobile operated by the defendant, Michelle J. Snyder, which automobile was owned by Michelle's mother, Defendant, Shannette Snyder. Michelle and Stephanie, both teenagers at the time, were returning from a social outing in New Jersey. As the vehicle negotiated a bend in the road, it hit a patch of ice, skidded off the road, and struck a telephone pole before coming to rest in the opposite lane. The Plaintiff was badly injured, and initiated this action in Trespass to recover for her damages.
In ruling on the motion for a non-suit, the Court stated that "the Plaintiff's case fails to establish any negligence on the part of the Defendant..." (N.T. 88). This ruling is well-founded, based upon Plaintiff's own testimony at the trial. On cross-examination, the Plaintiff testified as follows:
BY MR. HAHALIS - Q. Stephanie, taking you back again to the night of this accident, I just want to be sure that I understood certain areas of your testimony.
Number one, you are not aware of any excessive speed on the part of Shelley's operation of the vehicle; Right?
Q. And number two, she appeared to have the car under control at all times -- right? Up to the moment it started skidding; is that that correct?
A. As far as I know, yeah.
Q. Would I also be correct that up until the time that the car started skidding you were not aware of any condition; or, you did not, prior to that time, see any condition that would have warned you of ice being on the highway where it was; is that correct?
A. Right. I wasn't really paying attention. I was just driving with Shelley.
Q. But you had your eyes on the road, didn't you?
A. Not all the time.
Q. From time to time, anyway?
A. Yeah, right.
Q. Akay. You were not aware of any dangerous conditions on the highway, were you?
(N.T. 56, 57).
Shortly thereafter, the Plaintiff testified as follows:
Q. I take it, Stephanie, that as far as you are concerned from what you were able to observe on the date of the accident at all times until this sliding started Shelley had her car under control, did she not?
Q. You would say that she was attentive to her driving?
Q. She didn't let her attention wander from the road in any way?
A. (Shook her head negatively.)
Q. Again, she didn't operate it at an excessive rate of speed: right?
Q. And there were no conditions present on the road that would have indicated she was going too fast for conditions, were there?
A. Not to my knowledge, no.
Q. I take it there is nothing that you know of that she could have done to avoid the sliding when it occurred; is that correct?
A. Not that I know of.
(N.T. 61, 62).
Plaintiff's only substantive allegation of negligence, then, was that the Defendant knew or should have known of the existence of the icy condition at that location, and should have operated her car in such a manner as to avoid the skid. To establish a basis for this allegation, Plaintiff offered the testimony of Officer Henry Bacon of the East Bangor Police Department. Officer Bacon testified that, due to a drainage problem near the road, an icy patch "quite frequently" existed on this stretch of road, "if it's not taken care of time." (N.T. 74, 75). Plaintiff then called the Defendant, Michelle Snyder, as of cross-examination, and brought out the fact that the Defendant had driven the road in question at least once a day for two years prior to the accident. (N.T. 81). From this testimony, Plaintiff contends that Defendant's knowledge of the dangerous condition could be inferred, and therefore, that a prima facie case of negligence had been made out, at least sufficient to go to the jury. This argument fails to take into account, however, the balance of the Defendant's testimony, elicited in the Plaintiff's side of the case. The Defendant testified that she had travelled this section of road earlier in the evening of the night of the accident, and that the icy condition had not been present at that time. (N.T. 83). Officer Bacon appeared to confirm this testimony, stating that he had not become aware of the condition, which he felt was dangerous enough to report to PennDOT, until approximately 11:00 P.M., some four to five hours after the Defendant had first passed over the road. (N.T. 77).*fn1
From the foregoing testimony, the Court determined that the Plaintiff had "given no such evidence as in law is sufficient to maintain the action:" See 12 P. S. § 645. In reaching this decision, the Court did not rely on the case of Manners v. Vandrvoort, 405 Pa. 186, 174 A.2d 850 (1961), which was cited by counsel, but the doctrine of which has been in disrepute for some time: See Campbell v. Fiorot, 411 Pa. 157, 191 A.2d 657 (1963). Rather, the court came to the conclusion that the Plaintiff, having alleged certain negligence on the part of the Defendant, had failed sufficiently to establish that negligence, and had in fact offered evidence rebutting those allegations. It was for this reason that the non-suit was granted. This was not a case where the burden was placed upon the Plaintiff to show that the skid had been caused by the Defendant's negligence. This was a situation where the Plaintiff effectively negated, in her own case, whatever presumption or inference of negligence might have arisen from the fact of the skid. The Plaintiff showed that the Defendant had not been speeding, that she was alert, and had the car under control at all times prior to the skid, that there was nothing to indicate that the dangerous condition existed, or that the Defendant was aware of the condition.
It is the Plaintiff's burden to establish by a predominance of the evidence that the accident resulted from the negligence of the Defendant. Under the modern rule, proof of a skid may be sufficient to get the case to a jury: McElhinny v. Iliff, 436 Pa. 506, 269 A.2d 739 (1970). In this case, however, the Plaintiff's own testimony controverted her allegations of negligence. It was and is the opinion of this Court that the Plaintiff failed of her burden herein, and that the non-suit was properly granted by the Trial Judge.
Wherefore, we enter the following
Order OF THE COURT EN BANC
AND NOW, to wit, this 10th Day of April, 1978, Plaintiff's Motion to remove the non-suit is denied and dismissed.
In refusing to take off appellee's motion for non-suit, the lower court concentrates on evidence favorable to appellee, while overlooking evidence favorable to appellant. A jury could have concluded that appellee either did know or should have known about the icy condition on the road, and therefore should have proceeded more carefully.
I should reverse and remand for trial.