No. 125 Harrisburg, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Dauphin County, No. 3103-S-1977.
Richard C. Angino, Harrisburg, for appellant.
Bernadette Barattini, Harrisburg, for appellee.
Price, Wieand and Lipez, JJ. Price, J., did not participate in the consideration or decision of this case.
[ 291 Pa. Super. Page 77]
On June 26, 1977, while riding his bicycle on Chambers Hill Road in Harrisburg, George N. Yandrich was struck from the rear by an automobile owned and operated by Martin J. Radic, the appellee. As a result of the collision,
[ 291 Pa. Super. Page 78]
Yandrich sustained injuries which eventually led to his death. The administrator of his estate, the appellant herein, instituted a trespass action alleging appellee's negligence as the cause of Yandrich's death. The case was tried before a jury which found appellee's negligence to be 21% and that of appellant's decedent to be 79%. Appellant's motions for judgment n. o. v. and, alternatively, for a new trial were denied, and judgment was entered in favor of appellee. This appeal followed.
Appellant contends that there was a total absence of evidence from which contributory negligence on the part of the decedent could have been found. He thus contends that the issue of contributory negligence should be decided in the decedent's favor as a matter of law. It is well established, however, that a party's negligence must be submitted to the jury unless there is no evidence from which an affirmative finding could be made without resort to speculation. Greet v. Arned Corp., 412 Pa. 292, 194 A.2d 343 (1963); Miller v. Montgomery, 397 Pa. 94, 152 A.2d 757 (1959). "[W]here there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof." (Emphasis in original.) Smith v. Port Authority Transit, 257 Pa. Super. 66, 71, 390 A.2d 249, 251 (1978), quoting from Heffernan v. Rosser, 419 Pa. 550, 554-5, 215 A.2d 655, 657 (1966). See also: Polinelli v. Union Supply Co., 403 Pa. 547, 552, 170 A.2d 351, 354 (1961).
In the instant case, appellee testified to facts from which the decedent's contributing negligence could properly be inferred. Appellee testified that he had observed the decedent proceeding along the berm of the highway on his bicycle in a straight and steady fashion. He stated that he continued to watch the roadway as he overtook the bicycle and that, at a point about ten or fifteen feet from the point of the ultimate collision, the bicycle suddenly appeared on the road in front of his automobile. The suddenness of its appearance, he said, prevented his reacting quickly enough to avoid the accident. Appellee testified that because he
[ 291 Pa. Super. Page 79]
had not kept his vision fixed exclusively on the bicycle, he had not seen the decedent move from the berm to the roadway and could not describe the specific physical movements of the decedent which caused the bicycle to move onto the road.
The absence of a description of the decedent's actual movement on his bicycle and the possible causes which brought the bicycle onto the road in front of appellee's car did not require that the jury resort to speculation in finding decedent contributorily negligent. The evidence that the decedent's bicycle, which had been observed travelling steadily ahead on the berm of a highway, suddenly appeared directly in front of an automobile approaching on that highway ...