Stauffer v. Railway Express Agency, Inc.

• Decision Date: 25 June 1946
• Docket Number: 3803
• Parties: Stauffer, Admr., v. Railway Express Agency, Inc., Appellant
• Court: Pennsylvania Supreme Court

47 A.2d 817

355 Pa. 24

Stauffer, Admr., v. Railway Express Agency, Inc., Appellant

No. 3803

Supreme Court of Pennsylvania

June 25, 1946

Argued March 28, 1946

Appeal, No. 49, March T., 1946, from judgment of C.P Allegheny Co., April T., 1945, No. 1946, in case of Albert N Stauffer, Admr., Estate of Albert N. Stauffer, Jr., deceased v. Railway Express Agency, Inc. Judgment reversed; reargument refused July 16, 1946.

Trespass for wrongful death. Before McNAUGHER, J.

Verdict and judgment for plaintiff in sum of $20,742.85. Defendant appealed.

The judgment of the court below is reversed and is here entered for the defendant.

Sidney J. Watts, with him Baker & Watts, for appellant.

Clair D. Moss, for appellee .

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. JUSTICE ALLEN M. STEARNE

A young boy was killed in an accident. The parents claim that he was struck by defendant's truck as a result of the driver's negligence. The claim is opposed by defendant on the ground that there is not sufficient evidence to support it. The jury rendered a verdict for the administrator of $3,742.85 under the "Death" Act, and $17,000 under the "Survival" Act.

The rules prescribing the measure of proof required to establish negligence have been frequently stated; the difficulty is in their application. It is not enough to show merely that an accident occurred, or that it may have happened from any of several causes, equally probable, for only one of which the defendant would be responsible; a jury cannot be allowed to find a verdict on the basis of a mere guess or conjecture; there must be a description of the facts and circumstances sufficient to justify a reasonable conclusion that the defendant was negligent and thereby caused the accident. Among recent cases enunciating and applying these principles may be cited Skrutski v. Cochran, 341 Pa. 289, 19 A.2d 106; Houston v. Republican Athletic Association, 343 Pa. 218, 22 A.2d 715; Martin v. Marateck, 345 Pa. 103, 27 A.2d 42; Fix v. Pennsylvania Power & Light Co., 346 Pa. 598, 31 A.2d 114; Liguoria, Admr. v. Philadelphia, 351 Pa. 494, 498, 41 A.2d 563, 564. But, on the other hand, it is not necessary that there be testimony of eye-witnesses; circumstantial evidence may be amply sufficient to prove negligence: Pfendler v. Yellow Cab Co., 443, 445, 185 A. 618, 619; Grimes v. Yellow Cab Co., 344 Pa. 298, 302, 25 A.2d 294, 296; Giordano v. Clement Martin, Inc., 347 Pa. 61, 64, 31 A.2d 504, 506; Rowles v. Evanuik, 350 Pa. 64, 68, 38 A.2d 255, 257. As was said in Giordano v. Clement Martin, Inc., 347 Pa. 61, 64, 31 A.2d 504, 506: "Proofs to a degree of absolute certainty are rarely attainable; it is sufficient that they be such as to satisfy reasonable minds." Nor does the law require the elimination of every possible cause of the accident other than that on which the plaintiff relies, or of all the causes which the ingenuity of counsel may suggest, but only of such other causes, if any, as are fairly suggested by the evidence: Giordano v. Clement Martin, Inc., 347 Pa. 61, 64, 31 A.2d 504, 506; Saganowich v. Hachikian, 348 Pa. 313, 316, 35 A.2d 343, 345; Dunmire v. Fitzgerald, 349 Pa. 511, 514, 37 A.2d 596, 598; Jones v. Monroe Electric Co., 350 Pa. 539, 542, 39 A.2d 569, 570, 571.

The scene of the present accident was the easterly intersection of 41st Street and Eden Way in the City of Pittsburgh. 41st Street runs in a northerly and southerly direction, Eden Way, which is 14 feet in width from curb to curb, in an easterly and westerly direction. Approximately 128 feet east of and parallel to 41st Street is Banner Way, which runs into a dead end at Eden Way from the north. The entire northerly side of Eden Way between 41st Street and Banner Way is occupied by a building of Federal Laboratories, Inc.

On February 14, 1944, at about 11.45 a.m., one Joseph Bernot, employed by defendant, Railway Express Agency, Inc., and intending to make a delivery on its behalf at the Federal Laboratories plant, drove defendant's truck, which, as loaded weighed 3 1/2 tons, to the rear entrance of the building on Banner Way. There he was told to go around to the front on 41st Street and accordingly he drove the truck south on Banner Way and then west on Eden Way toward 41st Street. Although it was snowing he did not set his windshield wiper in operation. As he came along Eden Way there was an automobile parked on the northerly side; he passed this car and, turning right at 41st Street, went north for a distance of about 80 to 100 feet preparatory to backing into the entrance of the Federal Laboratories building. At that moment somebody shouted that he had struck a little boy. Immediately after the truck had passed the easterly cross-walk at the intersection of 41st Street and Eden Way, Albert N. Stauffer, Jr., a child aged 5 years and 4 months, who had been on his way home from kindergarten, was found lying on the cross-walk, with blood flowing from a wound in his head, at a point midway between the tracks which the wheels of the truck had made in the snow. The boy was at once rushed to the hospital, but was there pronounced dead. A pool of his blood was found on the cross-walk about 4 or 5 feet north of the southerly curbstone of Eden Way. It may be added that in passing from Eden Way into 41st Street it was highly necessary for the driver of a vehicle to proceed with especial caution and be on the alert for pedestrians approaching from the south because there was a high stone wall running along the southerly side of Eden Way to the 41st Street houseling which made it impossible for a driver to look toward the south along the latter street until his vehicle emerged beyond the end of the wall. When first interviewed Bernot stated that he "did not know whether he hit the child or not"; he said he did not see the boy at any time.

Mrs Stauffer, the child's mother, testified that, growing anxious because of the failure of her child to return from school, she went out to look for him. Standing on Eden Way at a point somewhat to the east of Banner Way, a distance of about 150 feet from the point of the accident, she said...