Borisoff v. Penn Fruit Co., Inc.

• Citation: 165 Pa.Super. 572,69 A.2d 167
• Decision Date: 15 November 1949
• Docket Number: 1010
• Parties: BORISOFF v. PENN FRUIT CO., Inc.
• Court: Superior Court of Pennsylvania

69 A.2d 167

165 Pa.Super. 572

BORISOFF v. PENN FRUIT CO., Inc.

No. 1010

Superior Court of Pennsylvania

November 15, 1949

Argued October 4, 1949.

Appeal, No. 204, Oct. T., 1949, from judgment of Municipal Court of Philadelphia County, May T., 1947, No. 556, in case of Abe Borisoff v. Penn Fruit Company, Inc.

Trespass for property damage. Before Bonniwell, J.

Compulsory nonsuit entered; plaintiff's motion to take off nonsuit refused and judgment entered for defendant. Plaintiff appealed.

John J. Dautrich, for appellant.

George H. Detweiler, with him Robert A. Detweiler, for appellee.

Rhodes P. J., Dithrich, Ross, Arnold and Fine, JJ. (Hirt and Reno JJ., absent).

OPINION

ROSS J.

This is an appeal by the plaintiff in a case involving damage to his automobile resulting from an intersection collision with defendant's truck. At the close of plaintiff's testimony, the trial judge entered a compulsory nonsuit which the court en banc refused to take off and this appeal followed.

In Sargeant v. Ayers, 358 Pa. 393, 395, 57 A.2d 881 883, Mr. Justice Jones stated: "On a question as to the appropriateness of a compulsory nonsuit, the pertinent inquiry is whether the plaintiff's negligence appears so irrefutably from the evidence in his own case that to permit a jury to absolve him in the circumstances would be to elevate caprice over legally conclusive fact. . . . Or, as was stated in Virgilio v. Walker and Brehm, 254 Pa. 241, 244-245, 98 A. 815, '. . . a nonsuit can be entered only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved.'"

The sole question involved is whether the plaintiff was guilty of contributory negligence as a matter of law, and in determining this we must view the evidence in the light most favorable to him and give him the benefit of every doubtful or obscure fact and the reasonable inferences that a jury might deduce from the evidence: McCreery v. Westmoreland Farm Bureau Co-operative Assn., 357 Pa. 567, 55 A.2d 399.

The collision out of which the case arose occurred on November 9 1945, at the intersection of Sixth and Pine Streets in Philadelphia. Each street is 26 feet wide with single trolley tracks in the center and each is a one-way street, Sixth for southbound traffic and Pine for westbound. A traffic signal light is erected at the intersection. Driving south on the west side of Sixth Street, the plaintiff stopped his car for a red traffic signal on Pine, with a line of cars following him. A truck being driven by one Militello was also traveling south on Sixth, arrived at the intersection at about the same time and stopped about two feet ahead of plaintiff's car and to its left. When the light turned green, the plaintiff looked to his left but could not see east on Pine Street because of Militello's truck. He did, however, have an unobstructed view of the intersection which was clear as both his car and Militello's truck moved forward into the intersection. Militello, whose view to the left or east on Pine was...