Schofield v. King

• Decision Date: 18 March 1957
• Docket Number: 3479
• Citation: 130 A.2d 93,388 Pa. 132
• Parties: Elizabeth E. SCHOFIELD, Administratrix of the Estate of Isaac Horton Schofield, Deceased, Appellant, v. Alfred T. KING and John C. Gourley.
• Court: Pennsylvania Supreme Court

130 A.2d 93

388 Pa. 132

Elizabeth E. SCHOFIELD, Administratrix of the Estate of Isaac Horton Schofield, Deceased, Appellant, v. Alfred T. KING and John C. Gourley.

No. 3479

Supreme Court of Pennsylvania

March 18, 1957

Argued January 11, 1957

Appeal, No. 154, Jan. T., 1957, from judgment of Court of Common Pleas of Bucks County, March T., 1954, No. 144, in case of Elizabeth E. Schofield, administratrix of estate of Isaac Horton Schofield, deceased v. Alfred T. King et al. Judgment affirmed.

Trespass for wrongful death. Before BIESTER, P.J.

Compulsory nonsuit entered; plaintiff's motion to take off nonsuit refused and final judgment entered. Plaintiff appealed.

Judgment affirmed.

S Walter Foulkrod, Jr., with him J. Franklin Hartzell, for appellant.

Donald B. Smith, with him Smith & Mountenay, for appellees.

Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.

OPINION

MR. JUSTICE BELL

Plaintiff appealed from an Order or Judgment of nonsuit. Isaac H. Schofield died as the result of injuries resulting from an apparent collision between a Ford station wagon which he was driving and a truck (consisting of a cab and a metal body) owned by defendant King, which was driven by defendant Gourley. The facts in this case are undisputed. Considering the evidence in the light most favorable to plaintiff, together with every reasonable inference therefrom ( Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382; Rush v. Plains Township, 371 Pa. 117, 89 A.2d 200; Davies v. Delaware, Lackawanna and Western Railroad Company, 370 Pa. 180, 87 A.2d 183), the facts are as follows:

Plaintiff called two witnesses. The testimony on which the plaintiff mainly relies is that of a Pennsylvania State policeman, Alexander Balnis, who investigated the accident shortly after its occurrence at approximately 9:15 on the evening of April 28, 1953. Decedent was driving his Ford station wagon in a northerly direction on Old York Road (route 263) north of the village of Furlong in Bucks County. The highway runs north and south, the paved portion is approximately 19 feet in width and at that time had no white lines or other markers. Defendant Gourley was driving his truck in a southerly direction on Old York Road. Arriving at the scene of the accident Officer Balnis observed the decedent's station wagon on the easterly side of the highway (his correct lane) facing in a southwesterly direction. The vehicle was on the paved portion of the highway except for its left rear wheel. The truck, owned by defendant King and operated by defendant Gourley, was on the westerly side of the highway (his correct lane) facing in a southeasterly direction with its cab and chassis on the paved portion of the highway and with its rear wheels on the shoulder. Both automobiles were on their right or proper side of the highway. Both vehicles suffered extensive damage to their left sides and came to rest approximately 40 feet apart. Officer Balnis testified that the debris "was pretty well strewn in that area between the two vehicles". This witness also testified to his observance of a skid mark which extended in an arc for a distance of approximately 13 feet along the eastern edge of the highway leading to the right rear wheel of the decedent's station wagon. The importance of this skid mark will hereinafter appear.

Balnis further testified that Gourley told him he was traveling south on Old York Road at 25 to 35 miles an hour; his lights were in good working condition; that decedent's car, which was traveling at a very fast rate of speed, swerved over onto his, Gourley's side of the road; that he cut his wheels to the right and that it was his impression that the right front wheels of his truck were on the dirt shoulder when the collision took place.

Gourley was called by plaintiff as for cross-examination but was not questioned concerning the accident itself or how it occurred. In the light of Balnis's testimony, the reason is obvious.

The law is clearly settled; the difficulty is in applying the law to the meagre evidence presented by plaintiff.

Plaintiff has the burden of proving that the defendant was negligent and that his negligence was the proximate cause of the accident. The mere happening of an accident does not prove negligence by either party: Lanni v. Pa. R.R. Co., 371 Pa. 106, 88 A.2d 887. If a person is killed in an accident there is a rebuttable presumption of fact that he exercised due care, but that presumption affords no basis for an inference that the accident was caused by the negligence of defendant: Duda v. Carothers, 379 Pa. 248, 108 A.2d 791; Ebersole v. Beistline, 368 Pa. 12, 82 A.2d 11.Finally, a compulsory nonsuit can be entered only in a clear case: cf. Downes v. Hodin, 377 Pa. 208, 104 A.2d 495; Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776; Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858.

The leading case on this subject is Ebersole v. Beistline, 368 Pa., supra. In that case an automobile was being driven by defendant southwardly on Lombard Street around midday. At a point four feet from the west edge of the macadam defendant's car struck the rear of a bicycle on which plaintiff, a 9 year old boy, was riding. Lombard Street was 22 feet wide and defendant knew that children played there. After the accident the boy's body was found lying on the west curb 90 feet south of the point of impact from the point where defendant's automobile struck plaintiff's bicycle. Plaintiff's bicycle was found nearby. The boy died on arrival at the hospital.Defendant was traveling between 20 and 35 miles an hour, but there was no evidence where the boy and his bicycle had come from nor how long they had been in front of defendant before he struck them. This Court affirmed a directed verdict for defendant, holding that plaintiff had failed to make out a prima facie case of negligence. The Court, in a very able opinion, said (pages 15-17):

"The principles applicable to cases of this kind have been so frequently proclaimed that it would seem quite unnecessary to reiterate them. Stating them briefly, however, they are as follows: The mere fact that a collision has occurred between two vehicles affords no basis, in the absence of evidence as to the manner of its occurrence, for inferring that one party rather than the other was at fault; in other words the doctrine of res ipsa loquitur does not apply. ... The evidence is insufficient to warrant recovery if it fails to describe, picture or visualize what actually happened sufficiently to enable the fact-finding 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...