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JACK E. FISHER AND CONSTANCE FISHER v. JOHN R. FINDLAY AND HELEN FINDLAY (09/23/83)

filed: September 23, 1983.

JACK E. FISHER AND CONSTANCE FISHER, HUSBAND/WIFE, APPELLANTS
v.
JOHN R. FINDLAY AND HELEN FINDLAY, HIS WIFE



No. 521 PHILADELPHIA, 1982, Appeal from an Order of February 11, 1982, in the Court of Common Pleas of Pike County, Civil Division, No. 74 November Term, 1976.

COUNSEL

Warren D. Utermahlen, Milford, for appellants.

Lucille Marsh, Scranton, for appellees.

Hester, Montemuro and Popovich, JJ.

Author: Hester

[ 319 Pa. Super. Page 215]

This is an appeal from the Order of February 11, 1982, in the Court of Common Pleas of Pike County, affirming the Order of May 22, 1979, granting a compulsory non-suit.

When reviewing the issue of whether a compulsory non-suit should have been granted,

"Plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiffs favor. McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232 (1951). A compulsory non-suit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion.

[ 319 Pa. Super. Page 216]

A. On the left.

Q. It's on the left?

A. Yes, sir.

Q. So as you turn left into the hallway the first door you come to is the cellar door, and the first light switch on the left is the light switch for the cellar, isn't that true?

A. After you open the door, yes, sir.

Q. Now, you had referred to a bathroom. The bathroom door is the second door, isn't it?

A. It's right straight ahead.

Q. Please, it is or isn't it the second door?

A. Yes, sir, the second door.

Q. Now, is that light switch located on an outside wall or is it located inside the bathroom?

A. Inside the bathroom.

Q. Now, did you tell Mr. Fisher at any time that the door to the bathroom was the second door?

A. No, sir.

Q. Did you tell him that the light switch that he was going to find on his left was the second light switch on his left?

A. No, sir.

Q. In order to get to the light switch which would be for the cellar you have to open the cellar door, is that correct?

A. Yes, sir.

Q. And for the light switch in the bathroom you also have to go into the bathroom, don't you?

A. Yes.

Appellant, upon entering the hallway, proceeded to the first door on his left and opening it inward, tumbled down the stairway. He was found by appellees, lying unconscious, on the cellar floor. Due to the seriousness ...


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