Di Giannantonio v. Pittsburgh Rys. Co.
| Decision Date | 01 December 1960 |
| Citation | 402 Pa. 27,166 A.2d 28 |
| Parties | Mary Lee DI GIANNANTONIO, a minor, by her Guardian, Rocco DiGiannantonio and Rocco DiGiannantonio and Marian DiGiannantonio, parents of said minor in their own right and Rocco DiGiannantonio and Marian DiGiannantonio, his wife, v. PITTSBURGH RAILWAYS COMPANY, a Corporation, Defendant, and Rocco DiGiannantonio, Additional Defendant. |
| Court | Pennsylvania Supreme Court |
Wirtzman & Sikov, Murray S. Love, Pittsburgh, for appellants.
Prichard, Lawler & Geltz, James A. Geltz, Leo Daniels, Pittsburgh, for appellees.
Donald W. Bebenek, Meyer, Darragh, Buckler & Bebenek, Pittsburgh, for Rocco DiGiannantonio.
Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.
Plaintiffs sued to recover damages for personal injuries alleged to have been sustained as a result of the defendant's negligence. At the conclusion of plaintiffs' case, the trial judge entered a compulsory nonsuit which the court en banc subsequently refused to remove. From the judgments entered the plaintiffs have appealed and the sole question involved is whether the evidence adduced by plaintiffs was sufficient to create an issue of fact as to whether their injuries were due to defendant's negligence.
This action arose as a result of a collision which occurred at the intersection of East Carson Street and 26th Street in the City of Pittsburgh. An automobile owned and operated by the husband-plaintiff, in which the wife-plaintiff and child-plaintiff were riding as passengers, while making a left turn from East Carson Street into 26th Street, was struck on the right front side by the defendant's streetcar, which was proceeding in an easterly direction on East Carson Street.
The reasons given by the trial court for the granting of a nonsuit were (a) a conflict between the testimony of the husband-plaintiff and the testimony of the plaintiffs' liability witnesses relating to the issue of defendant's negligence and (b) plaintiffs' failure to meet their burden of proving that the alleged negligence was the proximate cause of the injuries. In reviewing the action of the court below, we accept certain well established principles of law to guide us: (1) the evidence, together with all reasonable inferences therefrom, must be viewed in the light most favorable to plaintiffs; (2) the mere happening of an accident does not constitute evidence of negligence and the burden was on plaintiffs to prove both that the defendant was negligent and that his negligence was the proximate cause of the accident; (3) a compulsory nonsuit should be entered only in a clear case. Dunmore v. McMillan, 1959, 396 Pa. 472, 152 A.2d 708.
Plaintiffs' evidence and the reasonable inferences therefrom, viewed in the most favorable light, indicate that the husband-plaintiff had his turn signals on and stopped his car a little more than half way into the intersection of 26th Street in order to see if he had a clear path to cross. At that point he had not yet started to make his left turn. When he stopped he noticed a streetcar on the eastbound tracks of East Carson Street at a regular stop a short distance before the intersection. The streetcar, at the time, was discharging some passengers. Seeing the stopped streetcar discharging passengers and not being able to see any other vehicle coming toward him, the husband-plaintiff started into his left turn. After traveling about five feet or part way through the turn in a position approximately between the eastbound streetcar tracks, an automobile operated by a person unknown to either of the parties to this action came rapidly along the right side of the stopped streetcar in an easterly direction. The husband-plaintiff stopped his car to permit the automobile to go by. As he stopped, his daughter screamed and he turned his head to the right and saw the streetcar coming 'on top of me.' The streetcar then ran into the right side of his car. When asked upon cross-examination why he did not attempt to back up, he replied, 'The streetcar was on top of me.'
The testimony of three disinterested witnesses confirmed, to a great extent, the plaintiffs' version of the accident. However, on cross-examination two of these witnesses were confronted with signed statements that had been secured for the defendant by an insurance investigator. These written statements, the authenticity of which was conceded, were not definitive and, viewed in the light most favorable to the plaintiffs, could not be said to directly contradict the testimony of the witnesses in respect to the defendant's negligence.
The court below correctly stated that where there is a conflict in testimony on a subject as to which the burden of proof is on the plaintiff, the court must not submit evidence which will merely enable a jury to guess at a fact in favor of...
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