Martin v. Marateck
| Decision Date | 29 June 1942 |
| Docket Number | 76 |
| Citation | 27 A.2d 42,345 Pa. 103 |
| Parties | Martin, Appellant, v. Marateck |
| Court | Pennsylvania Supreme Court |
Argued May 26, 1942.
Appeal No. 76, Jan. T., 1942, from judgment of C.P. Cumberland Co Feb. T., 1941, No. 281, in case of Laura Martin v. Sanford S Marateck. Judgment affirmed.
Trespass for wrongful death. Before REESE, P.J.
Compulsory nonsuit entered. Motion to take it off refused. Plaintiff appealed.
Judgment affirmed.
Frederick J. Templeton, for appellant.
Mark E Garber, for appellee.
Before SCHAFFER, C.J.; MAXEY, DREW, LINN, STERN, PATTERSON and PARKER, JJ.
Laura Martin, appellant, instituted this action in trespass, on behalf of herself and minor children, to recover damages for the death of her husband, John Martin, who died as the result of injuries sustained when he was struck by an automobile driven by Sanford S. Marateck, the appellee. At the trial, the court below entered a compulsory nonsuit, which it subsequently refused to take off, on the ground that the evidence adduced by appellant was not sufficient, as a matter of law, to warrant a finding that the accident was brought about by any negligence of the appellee, as averred, and its action in so doing is the subject of the present appeal. We are all of opinion that the nonsuit was properly entered, for failure of proof of negligence, and that the judgment of the court below must be affirmed.
The accident occurred at a point immediately east of the village of New Kingston, Cumberland County, on the public highway known as Route No. 11, at about 9:30 o'clock in the evening of June 8, 1940. Route No. 11 is a main highway running between Carlisle and Harrisburg in a generally east and west direction, and at the time of the collision the appellee was operating his car thereon in a westerly direction, towards Carlisle. One Duncan, appellant's sole eye witness to the occurrence, testified that shortly prior to the accident he stopped his car, which was headed east, between the highway and the pumps of a gasoline filling station located along the south edge of the highway, at a point approximately 100 feet from where Martin was found after the impact, and that as he was in the act of bringing his car to a stop he saw Martin passing between the gasoline pumps and the filling station building, a space four or five feet in width. The witness did not continue to observe the deceased, but brought his car to a halt in front of the pumps and alighted, for the purpose of buying gasoline. As he looked around, the witness saw Martin on the highway, near the middle, an undisclosed distance west of the filling station, and the Marateck car was then "just upon him" and "just ready to hit." According to the witness, Martin was facing at an angle towards the northwest, with his back towards the filling station, when he was struck, but the witness was unable to state whether he was walking or standing still at the time. After the impact, Martin was found lying on the highway, with his head about four inches south of the north edge of the paved portion of the highway, suffering from a fractured skull and other injuries, of which he died the following day. A witness who came upon the scene after the accident stated that appellee's car was stopped on the south side of the highway, 75 or 80 feet from where Martin was lying immediately after the impact, and a motor policeman who examined the car at some unspecified time after the accident testified that "it was damaged on the right side; the right cowl light, and the right front door window was cracked". So far as appears, however, the automobile may have been driven to the place where it was parked, because this was the first available safe place to leave it, and there is no evidence whatever to connect the damages to the car testified to by the officer with the accident in question.
Viewing this evidence in the light most favorable to appellant, as we are required to do in passing upon the propriety of the nonsuit (Wenhold v. O'Dea, 338 Pa. 33, 35), we are nevertheless bound to conclude, as did the court below, that it was clearly insufficient to take the case to the jury on the issue of appellee's negligence. The mere fact that the deceased was struck by the automobile of appellee on a public highway, which is all that is disclosed with any degree of certainty, affords no proof that the appellee was at fault. In addition to establishing the fact of accident, it was incumbent upon appellant so to describe, picture or visualize what actually happened at the time of the accident as to enable one fixed with the responsibility for ascertaining the facts to find that the appellee was negligent and that his negligence was the proximate cause of the accident. See Fisher v. Amsterdam, 290 Pa. 1, 3; Lithgow v. Lithgow, 334 Pa. 262, 264; Skrutski v. Cochran, 341 Pa. 289, 291. This appellant's evidence obviously fails to do. The record is devoid of any evidence showing how Martin came onto the highway or what length of time he was in the highway before he was struck, and his actions and movements from the time he left the gas pumps until the moment of impact are left wholly unexplained, so that it is impossible to infer from the evidence presented that appellee saw or should have seen him on the highway a sufficient time before the accident to bring the automobile to a stop, if under proper control. Under such circumstances, and in the absence of any evidence that appellee was driving in an improper manner or at an excessive rate of speed, that his attention was distracted, or that his car was mechanically defective, a verdict in favor of appellant would necessarily be based upon pure speculation and conjecture, rather than upon any proof of negligence, and could not be sustained: McAvoy v. Kromer, 277 Pa. 196; Hadhazi v. Zero Ice Corporation, 327 Pa. 558; Pfendler v. Speer, 323 Pa. 443; Brooks v. Morgan, 331 Pa. 235; Wenhold v. O'Dea, supra; Skrutski v. Cochran, supra.
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