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BENJAMIN BARNEY v. DAN F. FORADAS AND ALLEGHENY VALLEY TRANSFER COMPANY (10/08/82)

filed: October 8, 1982.

BENJAMIN BARNEY, APPELLANT,
v.
DAN F. FORADAS AND ALLEGHENY VALLEY TRANSFER COMPANY



No. 971 April Term, 1979, Appeal from the Judgment entered in the Court of Common Pleas, Civil Division, Allegheny County, Pennsylvania at No. GD76-16762.

COUNSEL

Stanley W. Greenfield, Pittsburgh, for appellant.

Warren D. Ferry, Pittsburgh, for appellee.

Price, Brosky and Montgomery, JJ.

Author: Price

[ 305 Pa. Super. Page 406]

Appellant, Benjamin Barney, brought an action in trespass for personal injuries sustained when he was struck by appellees' pick-up truck.*fn1 Upon the completion of appellant's case on liability, the appellees' motion for a compulsory non-suit was granted and the case dismissed. Thereafter the appellant presented a motion to remove the non-suit which was denied and this appeal followed.

At the trial, Mr. Barney testified that sometime after 1:30 p.m. on August 20, 1974 he exited a bus at the corner of Loretta Street and Murray Avenue. Murray Avenue is a four-lane public thoroughfare in the city of Pittsburgh which runs generally north and south, having two lanes for northbound and two lanes for southbound traffic. Murray Avenue intersects Loretta Street, a through street, at a right angle and the next intersection north of Loretta is Lilac Street, also a through street intersecting Murray Avenue at right angles. On the west side of Murray Avenue at Loretta Street is a Giant Eagle supermarket. On the east side of Murray at Loretta Street is a business establishment known as Lester's and to the north of and adjacent to Lester's is a bakery known as Lieberman's. The weather was clear and dry.

[ 305 Pa. Super. Page 407]

After alighting from the bus, the plaintiff walked westward across Murray Avenue and then north to Lieberman's bakery. Having completed his purchases, he accompanied two children that were in the bakery to the eastern curb of Murray Avenue. After checking for traffic, he permitted them to cross over to the Giant Eagle. Once he saw that the children were safely across he began to make his own way across the street.

Mr. Barney testified that he looked both ways before stepping off the curb and that he observed no oncoming traffic from either direction. (N.T. 30). He estimated that he was approximately three quarters of a bus stop away from the nearest intersection of Murray and Lilac and that he could see clearly up to that intersection. (N.T. 30-32). A witness, Laurel O'Hare, testified that Mr. Barney was approximately three-fourths of the way across the street before he was hit.

Mr. Barney does not recall being struck by the vehicle. He also does not remember whether he continued to look for vehicles travelling on Murray as he crossed the street. (N.T. 31, 43). He did not observe the vehicle which struck him at any time. (N.T. 45). The witness, Mrs. O'Hare, who was watching Mr. Barney from the restricted view inside the bakery, also did not observe the truck prior to impact. (N.T. 57). Mr. Barney presented only himself and Mrs. O'Hare to establish the liability of the appellees.

[ 305 Pa. Super. Page 408]

A compulsory non-suit may be entered only in a clear case where the facts and circumstances have as the only conclusion the absence of liability. McKenzie v. Cost Bros. Inc., 487 Pa. 303, 409 A.2d 362 (1979). 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. Page ...


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