decided: October 30, 1987.
THE ESTATE OF GEORGE DANKULICH, BY CATHERINE ANN DANKULICH, ADMINISTRATRIX OF THE ESTATE OF GEORGE DANKULICH, AND CATHERINE DANKULICH, INDIVIDUALLY, APPELLANTS
FREDERICK J. TARANTINO, THE BOROUGH OF TELFORD AND THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEES
Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of The Estate of George Dankulich by Catherine Ann Dankulich, Administratrix of the Estate of George Dankulich, and Catherine Dankulich, Individually v. Frederick J. Tarantino, The Borough of Telford and The Commonwealth of Pennsylvania, Department of Transportation, No. 81-15921.
Thomas C. Branca, for appellants.
William B. Koch, Koch, Phelps and Cunningham, for appellee, Frederick J. Tarantino.
John W. Stahl, Dougherty & Stonelake, for appellee, Borough of Telford.
William A. Slotter, Office of Attorney General, for appellee, Commonwealth of Pennsylvania, Department of Transportation.
President Judge Crumlish, Jr., Judge Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 110 Pa. Commw. Page 561]
Catherine Dankulich, as administratrix of the estate of her husband, George Dankulich, and individually, appeals a Montgomery County Common Pleas Court order denying her motion to strike off non-suit as to Frederick J. Tarantino and the Commonwealth of Pennsylvania, Department of Transportation (DOT). We affirm as to DOT but reverse and remand as to Tarantino.
George Dankulich, a pedestrian, died following injuries sustained in a collision with a car driven by Tarantino at or near the intersection of County Line Road and West Broad Street in the Borough of Telford. Before a jury, his personal representatives attempted to prove that the allegedly negligent design and maintenance of County Line Road at the site was a proximate cause of his death. Evidence was also presented purporting to demonstrate that Tarantino was driving negligently. At the conclusion of the plaintiff's evidence, the trial judge entered a non-suit in favor of defendants DOT and Tarantino.*fn1
Our scope of review has been repeatedly defined. A judgment of non-suit may be entered only in clear cases
[ 110 Pa. Commw. Page 562]
and the appellant must be afforded the benefit of every fact and reasonable inference arising from the evidence. McNally v. Liebowitz, 498 Pa. 163, 445 A.2d 716 (1982). The entry of a non-suit is proper only if a jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the appellant, could not reasonably conclude that the elements of the cause of action have been established. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).
Dankulich initially contends that DOT breached its duty to provide reasonably safe state highways.*fn2 See 42 Pa. C.S. § 8522(b)(4). She argues that DOT's failure to post signs or otherwise control traffic at this intersection created a jury question of DOT's precaution and the foreseeability of pedestrian injury in these circumstances. We disagree.
The following evidence evolved at trial. Tarantino was driving northbound on County Line Road, a two-lane state highway posting a twenty-five mile-per-hour speed limit. It meets West Broad Street at a T-intersection where nine-feet crosswalks are painted at the north and south sides of the intersection. There are four commercial businesses, a parking lot and a sidewalk on each side of County Line Road. Cars may park at the street curbs. No traffic control devices control County Line Road at the intersection. West Broad
[ 110 Pa. Commw. Page 563]
Street is controlled by a stop sign. The investigating police officer testified that County Line Road is a straight, level road having no visual obstructions. The intersection was described by the policeman and an eyewitness as well-illuminated.
Based on our careful review of the record, we find, as did the trial judge, that even when viewed in the light most favorable to Dankulich the evidence presented actually tends to refute the existence of the alleged dangerous condition. The road was flat and unobstructed, and the speed limit was sufficiently slow to permit a reasonably competent and careful driver to avoid pedestrian traffic. Only one witness testified that the intersection did not seem to be well lit, and that same witness, Tarantino, earlier acknowledged that he was able to see Clarence Hessler, Dankulich's companion, as he approached the intersection. N.T. 1/21/86, pp. 51-52, 55. Therefore, although there are some minor facts which could conjecturally support a finding of negligence on DOT's part,*fn3 we hold that there is simply no evidence to suggest that DOT's design or maintenance of this intersection was in any substantial way a proximate or legal cause of Dankulich's fatal incident. Accordingly, we affirm the trial court's decision as to DOT.
[ 110 Pa. Commw. Page 564]
Dankulich also challenges the entry of non-suit in favor of Tarantino. The primary focus of her contentions*fn4 is that the trial court erred in excluding a statement, handwritten by eyewitness Hessler on the night of the accident, in which he indicated that Dankulich was within the crosswalk when he was struck. At trial Hessler testified that Dankulich was struck approximately twenty feet south of the southern crosswalk. The written statement also indicated that Tarantino was travelling at about seventy miles per hour at the time. Dankulich identifies other evidence such as the distance from the point of impact that Dankulich's body landed*fn5 and Tarantino's failure to take any evasive action to contend that there existed sufficient circumstantial evidence of Tarantino's negligence to submit that issue to the jury. We agree.
While Hessler's prior inconsistent statement appears to be pivotal to the issue of Dankulich's comparative negligence, we hold that the circumstantial evidence of Tarantino's stopping distance, and his admitted failure to see Dankulich prior to impact, created a factual question which was in and of itself properly submissible to the jury.
Moreover, we believe that the trial judge erred in excluding the prior inconsistent statement written by the eyewitness Hessler. Our Supreme Court's recent
[ 110 Pa. Commw. Page 565]
decision in Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), embraced the "modern" rule, allowing the use of prior inconsistent statements of a non-party witness as substantive evidence. Applying this rule retroactively,*fn6 there is no question but that Hessler's prior statement, if credited by a jury, creates a substantial question as to Tarantino's negligence.*fn7
[ 110 Pa. Commw. Page 566]
Accordingly, we reverse the grant of non-suit in favor of Tarantino and remand for a new trial.
The Montgomery County Common Pleas Court order, No. 81-15921 dated July 8, 1986, is affirmed with respect to the Commonwealth of Pennsylvania, Department of Transportation, but reversed as to Frederick J. Tarantino. The matter is remanded to the Common Pleas Court for a new trial.
Order affirmed as to Commonwealth. Portion of order regarding driver transferred to Superior Court.