No. 564 Pittsburgh, 1981, Appeal from the Judgment of the Court of Common Pleas, Civil Division, Allegheny County, G.D. 76-05804.
Phillip B. Hart, Jr., Pittsburgh, for appellants.
Joseph B. Bagley, Pittsburgh, for Baker, appellees.
Thomas F. Weis, Pittsburgh, for Somerville, appellees.
Rowley, Beck and Montemuro, JJ.
[ 306 Pa. Super. Page 285]
The instant matter concerns a prank played by a group of highschool boys that resulted in injury to a staff member of the school. The two boys most obviously involved in the matter settled out of court with the injured woman, herein the appellant. The case was tried against the other two young men who were present at the time and allegedly participated by daring and encouraging the actors. The court below declared a non-suit, and the case did not go to the jury. Upon review of the record, we affirm the result of the lower court, but not all of its reasoning.
Where a compulsory non-suit is entered at the close of plaintiff's evidence, the appellate court, upon appeal from a refusal of the trial court to remove the non-suit, will determine whether plaintiff's evidence was sufficient to present a question for the trier of fact upon which a verdict or finding for the plaintiff could have been based. 9 Standard Pa. Practice Ch. 40, § 72, p. 389 and cases cited therein. The plaintiff must be given the benefit of all favorable evidence; every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of the plaintiff. Allen v. Leshner, 224 Pa. Super.Ct. 327, 306 A.2d 916 (1973). A compulsory non-suit may be entered only where the lack of evidence to sustain an action is so clear that there is no room for reasonable disagreement. Piccolo v. Weisenberger, 237 Pa. Super. 218, 352 A.2d 116 (1975).
[ 306 Pa. Super. Page 286]
The facts, in the light most favorable to plaintiff, are as follows:
The four appellees, all high school students, had entered a part of the school that was off-bounds for students at that hour. They were on a second floor balcony area, chatting and engaging in horseplay while waiting for the bell for the next period. They knew, or should have known that other students, faculty and staff were as likely to be in the area as they were themselves.
Appellee Keisling balanced the plastic trash can on the railing. As appellee Ball ascended the staircase, several people on the platform above threatened to throw the trash can on him, but did not. He joined the group, still holding an orange left from his lunch. The group was jostling around:
As soon as the deed was done, the group beat a hasty retreat to the men's room. A fair inference would be that they all felt implicated in the act, though ...