Opinion
April 13, 1956.
July 17, 1956.
Negligence — Automobiles — Evidence — Incontrovertible physical facts rule.
1. The incontrovertible physical facts rule is not applicable in the case of moving objects.
2. In an automobile collision case, it was Held that the evidence did not establish as a matter of law that defendant's car was in motion at the time of the accident or that, even if his car was in motion, he was guilty of negligence.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and CARR, JJ.
Appeal, No. 25, April T., 1956, from order of County Court of Allegheny County, 1955, No. A-496, in case of Matthew Boyko v. Emil Mrkonic. Order affirmed.
Appeal by defendant from judgment before alderman in action of trespass for property damage. Before KAUFMAN, J., without a jury.
Verdict for defendant and judgment thereon. Plaintiff appealed.
David S. Palkovitz, with him Palkovitz Palkovitz, for appellant.
Carl W. Brueck, Jr., with him Carl W. Brueck, for appellee.
Argued April 13, 1956.
Plaintiff's action in trespass arose from a collision between his automobile which was being operated by one Louise Mogus and an automobile being operated by the defendant. In a non-jury trial, the court rendered a verdict in favor of the defendant and this appeal is from an order of the court below dismissing plaintiff's exceptions, in effect a motion for a new trial.
On Sunday morning, September 18, 1954 Miss Mogus, a sister-in-law of the plaintiff, borrowed his car to drive her mother to church. Upon arriving at the church, she pulled over into the left lane of a two-way street and stopped about six feet from the curb to let her mother out of the car. The defendant, meanwhile, had driven up from the opposite direction and parked near the curb on his right side of the street about one car length in front of plaintiff's car. As Miss Mogus started forward, defendant backed up a few feet to give her more room and as they passed one another they exchanged a friendly greeting. A moment later the left rear fender of plaintiff's car caught on the left end of defendant's rear bumper ripping off the fender. The total damages amounted to eighty and 73/100 ($80.73) dollars.
The plaintiff earnestly contends the evidence conclusively shows that the defendant's automobile was in motion at the moment of impact.
The defendant testified that his car was not in motion at that time and the court below was justified in believing him. Moreover we cannot say that as a matter of law defendant would have been guilty of negligence even if his car had been in motion. Although the plaintiff attempts to invoke the incontrovertible physical facts rule, the appellate courts of this commonwealth have often held that it does not apply to moving objects. Ferguson v. Charis, 314 Pa. 164.
In reviewing the evidence and considering all the facts and reasonable inferences to be drawn therefrom in the light most favorable to the defendant's cause, we cannot say that as a matter of law he was guilty of negligence.
Order affirmed.