Rafferty v. DiJohn
| Decision Date | 30 September 1957 |
| Docket Number | 3035 |
| Citation | 390 Pa. 123,135 A.2d 375 |
| Parties | James RAFFERTY v. Louis DI JOHN. |
| Court | Pennsylvania Supreme Court |
Argued April 16, 1957
Appeal, No. 121, Jan. T., 1957, from order of Court of Common Pleas of Northampton County, Sept. T., 1955, No. 17, in case of James Rafferty v. Louis DiJohn. Judgment affirmed reargument refused November 6, 1957.
Same case in court below: 9 Pa. D. & C.2d 415.
Trespass for personal injuries. Before WOODRING, J.
Compulsory nonsuit entered; plaintiff's motion to take off nonsuit refused and final judgment entered. Plaintiff appealed.
Lewis R. Long, for appellant.
Clyde W. Teel, with him Fackenthal, Teel, McGiffert & Danser, for appellee.
Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.
This case is affirmed on the able and comprehensive opinion of Judge CARLETON T. WOODRING, writing for the court below, as reported in 9 Pa.D. & C.2d 415.
It is said of exhausted desert travelers that as they plod over the scorched yellow earth, seeking water and shade, their hopes are sometimes stirred by what seems to be an oasis in the distance. Amid the sea of sand which surrounds them, this island of greenery with its palm trees and inevitable spring assures them that soon all will be well. However, as they eagerly stumble toward the oasis, it never gets closer. It seems to retreat with the ever-receding horizon, first to cheer, then to tantalize, and finally to torment and torture the travelers. The sad awakening finally comes to the wayfarers that what they have been following was not an oasis but a mirage.
There seems to be a mirage in the law of Pennsylvania which says "In a case of this character, 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." [*]
Counsel who have been nonsuited in the lower courts look in their law books for guidance as to what to do, and, like the exhausted desert wanderer, they are encouraged to appeal because they are told that if it is conceivable on any reasonable hypothesis at all that their case should have gone to the jury, the appellate court will lift the nonsuit and order the case for trial. And so, they appeal, and very often they find that what had seemed to them an oasis in the law books was only a mirage in the Sahara of jurisprudence. That is what the attorney for the appellant in this case learns today.
His client, a man weighing 200 pounds, was struck by an automobile travelling at such a high speed that it catapulted him up and forward for a distance of 48 feet. Even after striking the plaintiff, the offending car travelled 145 feet before it could come to a stop. This Court has affirmed the lower Court which entered an involuntary nonsuit on the theory that the plaintiff was guilty of contributory negligence because he was hit when he had taken only two steps into the street.
The facts are that on the night of December 6, 1953, James Rafferty at about 11 o'clock, after bidding goodbye to friends with whom he had been visiting, started across Main Street in the city of Bethlehem to reach his domicile on the other side of the street. Visibility was poor because of a rain which was so heavy that one witness said: "It was raining cats and dogs." Assuming that the density of the atmosphere was something less than that which would accompany a downpour of animals, the record reveals that visibility was still limited to about 80 feet.
Before stepping down to the pavement the plaintiff looked to the left and then to the right. Assured that the coast was clear he started across the street. E. P. Sipple, whom he had been visiting that evening, testified that after the plaintiff Rafferty had committed himself to the street and had taken two steps he stopped to take a look and remained in this position for five or six seconds, when he was struck by an automobile coming from his left.
Since in considering the lifting of a nonsuit, we are required to evaluate the record in the light most advantageous to the plaintiff, how can it be said that 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, could conclude that the plaintiff was free of contributory negligence? What was the plaintiff to do? He stopped, he looked, and presumably he listened - and still he was hit. A witness testified that the defendant's car was travelling 40 miles per hour...
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