Duda v. Carothers

• Decision Date: 08 November 1954
• Citation: 379 Pa. 248,108 A.2d 791
• Parties: Pauline DUDA, Administratrix of the Estate of Michael Duda, Deceased, Appellant, v. Gladys CAROTHERS, Appellee.
• Court: Pennsylvania Supreme Court

Page 791

108 A.2d 791

379 Pa. 248

Pauline DUDA, Administratrix of the Estate of Michael Duda Deceased, Appellant, v. Gladys CAROTHERS, Appellee.

Supreme Court of Pennsylvania.

Nov. 8, 1954.

Alexander J. Bielski, McKeesport, for appellant.

John A. Robb, Van Der Voort, Royston, Robb & Leonard, Pittsburgh, for appellee.

Before STEARNE, JONES, CHIDSEY, MUSMANNO and ARNOLD, JJ.

ARNOLD, Justice.

Plaintiff appeals from the order of the court below refusing to take off a compulsory nonsuit entered in an action of trespass. The case arises out of the death of plaintiff's decedent after being struck by defendant's automobile.

The accident occurred on a twenty foot public highway at 10:30 A.M. on a clear, dry day. Decedent had been walking in a northerly direction on the berm and on his left side of the road. One Eckman, driving in the same direction, stopped his car on his side and 'dollered back' to offer decedent a ride. As he did so, he saw defendant's automobile about a 'car length' from decedent, proceeding southerly on the paved portion of the highway at a speed of 30 miles per hour. Eckman's warning to decedent of the car's approach was not heeded, and decedent 'went to take a step * * * lost his balance * * * went forward and the car struck him.' Defendant's car was brought to a stop on the pavement within a 'car length and a half' from the point of collision, and the only skid marks were approximately one foot in length on the paved portion of the highway. The damage to defendant's car was on the side of the right headlight, the windshield, and the right door.

Plaintiff contends that defendant was negligent because deceased was struck when 'standing on the berm.' The difficulty with this contention is that it is not supported by the evidence. Eckman testified:

'Q. Now, do you know of your own knowledge as to whether Duda, the decedent, was on the paved portion or on the berm portion when he was struck? A. I couldn't say that.'

'Q. What did he do if you know? A. It looked like he just took a step forward toward the pavement of the road. It looked like he lost his balance and kind of went forward and the car struck him.'

'Q. And for that reason you weren't able to state whether or not Mr. Duda was on the pavement proper or alongside of the pavement; is that right? A. That is right.' ¹

Although the plaintiff starts with the presumption that the deceased used due care, the presumption does not establish the negligence of the defendant. In Moore, v. Esso Standard Oil Company of Pennsylvania, 364 Pa. 343, 344, 345, 72 A. 2d 117, 119, this Court affirmed on the opinion of Judge Sweney of the court below, in which that judge stated: 'Two questions are here presented: (1) what effect, if any, does the presumption that decedent exercised due care have upon the question as to whether he was contributorily negligent as a matter of law; and (2) did plaintiff prove any negligence on the part of the defendants? The burden was upon the plaintiff to prove the defendants negligent by a preponderance of the evidence * * *. It is our opinion that the presumption of due care is a presumption of fact. As such, the presumption is not evidence and should not be substituted for evidence; it has no probative quality. * * * [Citing Watkins v. Prudential Insurance Co., 315 Pa. 479, 173 A. 644, 651, 95 A.L.R. 869. One thing is clear and that is that the presumption of due care does not prove the defendant negligent; nor does the presumption take the case to the jury, without real proof of the defendant's negligence. The presumption has no significance, until plaintiff has made out a prima facie case of defendant's negligence.' See also Ebersole v. Beistline, 368 Pa. 12, 17, 82 A.2d 11. The mere collision between the automobile and decedent-pedestrian does not prove negligence. Thompson v. Gorman, 366 Pa. 242, 246, 77 A.2d 413.

In this case there is nothing which the jury could reasonably use as a basis for a finding of negligence in the defendant, and it is not permitted to speculate or guess. Lanni v. Pennsylvania Railroad Company, 371 Pa. 106, 110, 88 A.2d 887.

Judgment affirmed.

Justice MUSMANNO, files a dissenting opinion.

MUSMANNO, Justice (dissenting).

An ancient Chinese proverb proclaimed that a picture was worth a hundred words. With the passage of time the ratio was augmented by Oriental philosophers who gravely announced that a picture was worth five hundred words. This self-speaking epigram spoke loudly and eventually was heard in the Occidental world where it was duly worked up to declare that a picture was worth a thousand words. Yankee cartoonists and photographers boosted it to ten thousand to one, and it is not known with precision what the odds are today.

In many ways the comparison between spoken words and pictures is empty of merit because there are some written messages which convey meaning that the most priceless painting could never conjure. The beauty and spirituality of the Sermon on the Mount and Lincoln's Gettysburg Address go infinitely beyond what pictures and three-dimensional reproductions could ever portray. Be that all as it may, there can be no doubt that a photograph of the locale of an automobile accident usually can tell more than scores of pages of testimony from witnesses who stumble, equivocate, blunder, and contradict under the driving examination of friendly or enemy attorney.

The case before us is directly in point. F. E. Eckman witnessed the accident which is the subject matter of this litigation. During the oral examination there were times when his testimony was far from edifying or illuminating. For instance, under plaintiff's attorney questioning, the following ensued: ¹

'Q. Now, then, where were you driving and in what direction were you driving on the morning of May 30, 1950, Mr. Eckman? A. I was going to visit my mother.

'Q. Now, you had gone up to your mother's, is that right? A. That's right.

'Q. What time did you arrive at your mother's? A. Around 10:30 or something like that.

'Q. I see. Did you stay very long at your mother's place? A. She wasn't home.

Also:

'Q. How far over on the right hand side of the road did you stop? A. I wouldn't say how far. I don't know how far I was off--I was off the road.

'Q. On the road. Were you over at the extreme right of the road, the center of the road, or the left of the road? A. I was on the other side.

What was the other side?

The attorney himself was not certain of directions:

'Q. Now, then, when you got on the highway which direction were you traveling? A. Toward Boston.

'Q. And that would be traveling in a southerly direction? A. North 'Q. Sir? A. North.

'Q. Northerly direction, yes. A. North.'

It is to be noted, however, that when photographs were introduced in evidence, all the mist and fog of uncertainty which had up to that moment enveloped the story of the accident lifted. As indicated in the majority opinion, Eckman was driving in the same direction that the decedent was walking. Eckman stopped his car and offered the decedent a ride. At the trial, plaintiff's counsel displayed a photograph (Plaintiff's Exhibit No. 1), and Eckman testified as follows:

'Q. Would you be able with the assistance of the picture here to indicate to the jury where your car was parked at the time of the accident?

'The Court: Wait before you mark it. (To Mr. Bielski): How...