Opinion
October 10, 1968.
November 27, 1968.
Negligence — Contributory negligence — Declaration as a matter of law.
Mr Justice EAGEN filed a dissenting opinion, in which Mr. Justice O'BRIEN and Mr. Justice ROBERTS joined.
Mr. Justice MUSMANNO did not participate in the decision of this case.
Argued October 10, 1968. Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 221, March T., 1968, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1961, No. 1990, in case of William G. Duff v. Charles N. Caputo et al. Judgment affirmed; reargument refused December 27, 1968.
Trespass for personal injuries. Before HESTER, J.
Verdict for plaintiff in the amount of $35,000 against both defendants; defendants' motion for judgment n.o.v. granted. Plaintiff appealed.
Melvin Schwartz, with him Cooper, Goodman Schwartz, for appellant.
Robert E. Wayman, with him Wayman, Irvin, Trushel McAuley, for appellees.
Judgment affirmed by an equally divided court.
Mr. Justice MUSMANNO did not participate in the decision of this case.
The lower court entered judgment for the defendants notwithstanding the jury's verdict in favor of the plaintiff. The court felt that the evidence established that the plaintiff was guilty of contributory negligence as a matter of law. In my view, this disposition was erroneous.
It is fundamental that contributory negligence exists as a matter of law only where there is no reasonable basis for holding otherwise under the facts of the case. Cushey v. Plunkard, 413 Pa. 116, 196 A.2d 295 (1964). I am not convinced that under all of the circumstances disclosed by the evidence in the instant case that there is no room for "fair and reasonable disagreement" as to the plaintiff's negligence.
I dissent, and would reverse the judgment of the lower court and would enter judgment on the verdict returned by the jury.
Mr. Justice O'BRIEN and Mr. Justice ROBERTS join in this dissent.