Finnin v. Neubert

• Decision Date: 24 May 1954
• Citation: 378 Pa. 40,105 A.2d 77
• Parties: FINNIN et al. v. NEUBERT.
• Court: Pennsylvania Supreme Court

105 A.2d 77

378 Pa. 40

FINNIN et al. v. NEUBERT.

Supreme Court of Pennsylvania.

May 24, 1954

Action for personal injuries sustained when automobile driven by defendant struck an 11 1/2 year old boy who suddenly jumped or darted from fenced off side of street onto or in front of the automobile. From order of compulsory non-suit by Court of Common Pleas, as of No. 566 August Term, 1952, Richard D Laird, J., the plaintiffs appealed. The Supreme Court, No 72, March Term, 1954, Bell, J., held that the evidence was insufficient to make out a prima facie case of negligence when there was no proof of absence or want of due care on part of defendant and the circumstantial evidence did not provide as only reasonable inference conclusion that accident was caused by negligence of defendant.

Order of non-suit affirmed.

Musmanno, J., dissented.

Marquis M. Smith, Edgar P. Herrington, Jr. Greensburg, for appellants.

Paul M. Robinson, Greensburg, for appellee.

Before STERN, C. J., and STEARNE, JONES, BELL, MUSMANNO, and ARNOLD, JJ.

BELL Justice.

This is an appeal from a compulsory non-suit. In such an appeal plaintiffs must be given the benefit of all the favorable testimony and every reasonable inference of fact arising therefrom; and all conflicts therein must be resolved in their favor. Parker v. McCrory Stores Corp., 376 Pa. 122, 101 A.2d 377; Lewis v. Quinn, 376 Pa. 109,101 A.2d 164.

All of the facts, including the place and the cause of the accident, are very meagre, but viewed in the light of the foregoing authorities may be thus stated:

Defendant was driving his automobile south on Constitution Boulevard in the City of New Kensington, Westmoreland County, on December 24, 1951 at about 11:30 o'clock a. m. Constitution Boulevard is a 25 foot wide street running (generally speaking) north and south and paralleling the railroad tracks which were very close to the street. A walk for pedestrians runs along the railroad tracks parallel with the Boulevard and is separated from the Boulevard for a considerable distance by a concrete wall and then by a continued iron pipe fence 3 feet high. The traffic light on Constitution Boulevard was green for defendant at its intersection with McCargo Street, which ran into but did not intersect the Boulevard, forming as it were a T. Unfortunately young Finnin, who was 11 1/2 years old, could not remember or relate any details of the accident. He was badly injured and was lying on the west side of Constitution Boulevard approximately 8 to 10 feet east of the concrete wall and 3 to 5 feet from the intersection of the wall and the fence, with his head toward the wall or fence and his body virtually perpendicular to the wall or fence.

The only witnesses of the accident were Mr. and Mrs. Neubert. Mr. Neubert, the defendant, was called by plaintiffs as for cross-examination and testified as follows:

‘ * * * my wife and I were coming down Constitution Boulevard and we were approaching the light and then the light turned green and I went on through and we were about half way through, across the intersection when my wife turned and yelled to me, look out for that kid and then the next thing I knew I then saw his feet were up in front of the windshield like. * * *

‘ Q. Where was Robert Finnin when you first saw him? A. Well, whenever I first saw him, when his feet hit, whenever I saw him in front, fly up in front of the car.

‘ Q. That is when you saw his body fly in front of the car is the first you saw him? A. Yes, sir.'

Plaintiffs' witness, Trzeciak, a police officer, testified that he interviewed defendant right after the accident and defendant said that Finnin jumped the rail. Another witness, Miles Cable, testified for plaintiffs that he was driving his automobile about a block in back of defendant and ‘ * * * all of a sudden I seen something flying through the air that looked like a card board at a distance, I couldn't make it out, it went up in the air, came down and went up a second time, * * *.'

It is uncertain whether the accident happened opposite the concrete wall or opposite the rail fence, but is was probably the latter.

Defendant's car stopped 30 to 50 feet from the spot where young Finnin was supposed to have been hit.

Deep sympathy for this boy does not justify a Court's finding negligence unless the evidence justifies it. We said in Brusis v. Henkels, 376 Pa. 226, 102 A.2d 146, 147," * * * ‘ The mere happening of an accident is no evidence of negligence. * * * Plaintiff has the two-fold burden of proving that the defendant was negligent and that his negligence was the proximate cause of her accident. * * *" Lanni v. Pennsylvania R. Co., 371 Pa. 106, 109, 88 A.2d 887, 888. * * *‘ It is well settled that conduct is negligent only if the harmful consequences thereof could reasonably have been foreseen and prevented. Leoni v. Reinhard, 327 Pa. 391, 194 A. 490; Franzen v. Goodman, 325 Pa. 518, 190 A. 888; White v. Roydhouse, 211 Pa. 13, 60 A. 316; Gaupin v. Murphy, 295 Pa. 214, 145 A. 123.’ Rockey v. Ernest, 367 Pa. 538, 541, 80 A.2d 783, 786.

‘ In Tua v. Brentwood Motor Coach Co., 371 Pa. 570 at page 575,92 A.2d 209, at page 211, the Court said: ‘ * * * But it is a cardinal rule of law that ‘ Want of ordinary care consists in failure to anticipate what is reasonably probable, not what is remotely possible’ . Camp v. Allegheny County, 263 Pa. 276, 282, 106 A. 314, 316. * * *''

In Lanni v. Pennsylvania R. Co., 371 Pa. 106 at page 110,88 A.2d 887, at page 888, the Court said: ‘ Negligence is the absence or want of care which a reasonable man would exercise under the circumstances. Maternia v. P [ennsylvania] R. [Co.], 358 Pa. 149, 56 A.2d 233.We said in Miller v. Hickey, 368 Pa. 317, 325, 81 A.2d 910, 914:‘ Negligence need not be proved by direct evidence, but may be inferred from attendant circumstances if the facts and circumstances are sufficient to reasonably and legitimately impute negligence. Rockey v. Ernest (367), Pa. (538), 80 A.2d 783; Bills v. Zitterbart, 363 Pa. 207, 69 A.2d 78; Turek v. Pennsylvania R. Co., 361 Pa. 512, 64 A.2d 779; Randolph v. Campbell, 360 Pa. 453, 62 A.2d 60; Wright v. Straessley, 321 Pa. 1, 182 A. 682.’ '

Ebersole v. Beistline, 368 Pa. 12, 82 A.2d 11, is very similar to and in principle rules the instant case. In that case the defendant driver of an automobile going 35 miles per hour through city streets ran into the rear of a bicycle and killed the 9 year old boy who was riding it. A directed verdict for defendant was sustained by this Court, because even when giving plaintiff the benefit of all facts and all reasonable inferences favorable to him, the facts and circumstances proved by plaintiff were not sufficient to enable a jury to reasonably and legitimately find a want of due care. The Court said 368 Pa. at pages 16, 17, 18, 82 A.2d 11, at pages 12, 13:‘ The evidence is insufficient to warrant recovery if it fails to describe, picture or visualize what actually happened sufficiently to enable the factfinding tribunal reasonably to conclude that the defendant was guilty of negligence and that his negligence was the proximate cause of the accident. A verdict cannot be supported on the basis of mere speculation or conjecture. Proof of negligence may be furnished by the circumstances themselves and it is not essential to have eye-witness testimony, but where the circumstantial evidence is offered because direct proof is not available it must...