Opinion
Argued March 21, 1951
Decided May 23, 1951
Negligence — Evidence — Circumstantial — Description of accident.
To prove actionable negligence by circumstantial evidence, the evidence must so describe, picture, or visualize what happened as to enable one fixed with the responsibility for ascertaining the facts to find that the defendant was a culpable party.
Before DREW, C. J., STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
Appeal, No. 18, March T., 1951, from judgment of Court of Common Pleas of Fayette County, June T., 1949, No. 428, in case of Emma S. McElwain, Admrx., Estate of Clarence W. McElwain, deceased v. Kimmel C. Myers. Judgment affirmed.
Trespass for wrongful death.
The facts are stated in the opinion, by CARR, P. J., of the court below, CARR, P. J., MORROW and COTTOM, JJ., as follows:
While walking late at night upon a mountain highway, the plaintiff's husband was struck and fatally injured by an automobile owned and operated by the defendant. There were no eyewitnesses to the accident, and at trial, after all the plaintiff's evidence upon the question of the defendant's liability had been produced, the trial judge entered a compulsory nonsuit on the ground that a cause of action against the defendant had not been shown. Contending that this ruling was erroneous, the plaintiff now asks us to take off the nonsuit and grant a new trial.
The circumstances in evidence are these: on Friday evening, February 25, 1949, the plaintiff and her husband had attended a firemen's ball at Turner's Inn, a night club located on the south side of U.S. Route 40, approximately one mile east of their home in the village of Hopwood. A few minutes before midnight he left without the plaintiff, saying he was going home, and was last seen alive standing alone in the doorway of the inn facing the highway. A short time later he was found lying unconscious on the south berm of the highway near the guardrail, at a point three hundred yards west of the inn. Except for some brush burns, his injuries were all on the right side of his head. The highway for a considerable distance in both directions was straight, down-grade from the inn, and thirty feet wide, with three lanes of concrete and eight-foot berms. According to the plaintiff's witnesses the night, though cold and dark, was clear and free from fog.
The first person to come upon the scene was a motorist driving east up the mountain whom the defendant, whose car was then standing in the south lane of travel headed east, had flagged down. To him the defendant stated that he was driving home from work and, being momentarily blinded by the headlights of an oncoming car, did not see the man. At the hospital that night the defendant told a reporter that his vision had been obscured by approaching headlights and he had swerved to the side of the road. At the coroner's inquest held on March 2, 1949, the defendant testified as follows: "Q. What was the weather like the night of the accident? A. Visibility was very bad. The fog — I ran into that stretch — the fog seemed to be travelling just in light clouds, you know, and there was rather a little mist falling, I think. Q. Traffic was heavy? A. Not too heavy, I would say. Q. Where did you first encounter fog? A. I encountered fog as soon as I went up the mountains, as I went up toward Turner's. Q. About how fast were you driving at the time you ran into the fog? A. I would say around thirty miles an hour, probably less. Q. Did you slow down because of the fog? A. Yes, I did some, but not very much. Q. What gear were you in? A. I was in high gear. Q. Did you see oncoming traffic? A. One car passed just as the accident happened. Q. Travelling west? A. He was coming this way, yes sir. Q. When did you first see this pedestrian? A. Probably five feet in front of me."
To establish actionable negligence in such a case the evidence must so describe, picture, or visualize what happened as to enable one fixed with the responsibility for ascertaining the facts to find that the defendant was the culpable party: Skrutski v. Cochran, 341 Pa. 289; Balducci v. Cutler, 354 Pa. 436; Stanalonis v. Branch Motor Express Co., 358 Pa. 426; Moore, Exrx. v. Esso Standard Oil Co., 364 Pa. 343; and to warrant such a finding the evidence must be so strong as to preclude the possibility of injury in any other way and compel, as the only reasonable one, the conclusion that the accident was caused by the negligence of the defendant in the manner alleged: Donaldson v. Pittsburgh Rys. Co., 358 Pa. 33; Stauffer v. Railway Express Agency, Inc., 355 Pa. 24; Stanalonis v. Branch Motor Express Co., 358 Pa. 426. Proving merely that the accident happened, or the existence of an opportunity for it to happen in the manner alleged, is insufficient; the plaintiff must go further and show not only the defendant's negligence but that the injuries complained of were the result of such negligence: Houston v. Republican Athletic Assn., 343 Pa. 218; Schleback v. Boat Trades Assn. of Philadelphia, 158 Pa. Super. 362.
In the present case the evidence does not disclose the movements of the decedent preceding his injury or show that he was in a position to be seen by a careful driver in time to avoid striking him. Where he was until at most a split second before being struck does not appear. His actions from the time he left the inn almost to the very instant he was struck are wholly unknown, so that it is impossible to determine whether the defendant should have seen him. In these circumstances a finding that the defendant was negligent and that his negligence was the proximate cause of the accident could rest only on speculation and conjecture. While there may have been some slight fog and mist, which, however, the plaintiff's witnesses all deny, and the headlights of the approaching car may have momentarily obscured his vision, it does not follow that the accident resulted from the speed of thirty miles an hour or less at which he was proceeding up the mountain. Whether or not his speed, even if excessive, could be regarded as the proximate cause of the accident would necessarily depend upon other circumstances not revealed by the evidence, including the movements and position of the decedent. The same is true of the defendant's admissions that he first saw the decedent when he was only five feet away and that he swerved to the side of the road. It does not appear whether he swerved before seeing the decedent in a position of danger, or afterwards in an unsuccessful effort to avoid striking him.
The presumption that the decedent himself was exercising due care is not evidence, and therefore cannot in itself make out a case against the defendant. On the contrary, being merely the converse of the rule that the burden of proving contributory negligence rests on the defendant, it has no significance whatever until the plaintiff has first affirmatively shown that the accident was proximately caused by the negligence of the defendant: Moore, Exrx. v. Esso Standard Oil Co., 364 Pa. 343; Watkins v. Prudential Insurance Co., 315 Pa. 497; Susser v. Wiley, 350 Pa. 427.
In our opinion the facts and circumstances in evidence are far too meager to warrant a finding of liability on the part of the defendant.
Plaintiff appealed.
Samuel J. Feigus, with him Wade K. Newell, for appellant.
William B. Parshall, with him Henderson, Parshall Crow, for appellee.
A majority of the members of this Court who heard this case are of the opinion that the learned court below was correct in refusing to take off the nonsuit. The judgment is therefore affirmed on the opinion of President Judge CARR for the court en banc.
Judgment affirmed.