A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion. McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970)." Cited in Jurich v. United Parcel Service of New York, Inc., 239 Pa. Super. 306, 361 A.2d 650 (1976).
"On appeal from the grant of a compulsory nonsuit we consider the evidence, and all the reasonable inferences therefrom, in the light most favorable to plaintiff." McNett v. Briggs, 217 Pa. Super. 322, 324, 272 A.2d 202, 204 (1970). Applying this rule, the facts in the present case are as follows: On April 10, 1970, at approximately 9:45 p.m., plaintiff's decedent was struck and killed by an automobile driven by defendant, in a southerly direction, on route 51 near Perryopolis, Pennsylvania. The impact occurred approximately in the center of the outside western lane of the 48-foot wide 4-lane highway.
Nevertheless, it is clear that unless contributory negligence has been established as a matter of law, the jury must be permitted to determine who will prevail on that issue. See Condo v. Caris, 255 Pa. Super. 16, 18, 386 A.2d 112, 113 (1978); McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970), citing Scholl v. Philadelphia Suburban Transportation Co., 356 Pa. 217, 224, 51 A.2d 732, 736 (1947); Williams v. Flemington Transportation Co., 417 Pa. 26, 34, 207 A.2d 762, 766 (1965) ("Taking the question [of contributory negligence] from the jury would have deprived decedent of the benefit of the full presumption [of due care] that he is entitled to, for had he lived . . . he would be entitled to place that matter before the jury for its determinations of the factual matter. This he would be denied by reason of his death.
A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion. McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970)." Cited in Jurich v. United Parcel Service ofNew York, Inc., 239 Pa. Super. 306, 361 A.2d 650 (1976).
Prost v. Caldwell Store, Inc., supra 409 Pa. at 427, 187 A.2d at 276 quoting Bisson v. John B. Kelly, Inc.,supra 314 Pa. at 110, 170 A. at 143 (emphasis supplied). Accord: Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 138-139, 153 A.2d 477, 480 (1959); Lavely v. Wolota,supra 253 Pa.Super. at 202, 384 A.2d at 1302; Printed TerryFinishing Company, Inc. v. City of Lebanon, supra 247 Pa.Super. at 291, 372 A.2d at 467; McNett v. Briggs, 217 Pa. Super. 322, 327-328, 272 A.2d 202, 205 (1970). The evidence in this case was sufficient to permit a finding that Dravo Corporation knew or should have known that the sand bar at the foot of Canton Street had been used widely by members of the public for various activities, including vehicular intrusions of the river.
In reviewing the propriety of the lower court's actions, we note that a nonsuit may only be entered where the facts and circumstances lead unerringly to but one conclusion. A.J.Aberman, Inc. v. Funk Building Corp., 278 Pa. Super. 385, 420 A.2d 594 (1980); McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970). "It is hornbook law that a judgment of nonsuit can be entered only in clear cases and before it may be entered the plaintiff must be given the benefit of all reasonable inferences of fact arising therefrom; and all conflicts in the evidence must be resolved in its favor."
The granting of a motion for compulsory non-suit is proper only where the facts adduced at trial indicate that the plaintiff has failed to put forth sufficient evidence as is necessary to support his cause of action. McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970). However, the mere happening of an accident is not evidence of negligence.
In determining the propriety of an order entering a nonsuit, the plaintiff must be given the benefit of every fact and every reasonable inference of fact arising from the evidence, whether direct or circumstantial, and all conflicts must be resolved in the plaintiff's favor. McDonald v. Ferrebee, 366 Pa. 543, 79 A.2d 232 (1951); Paul v. Hess Bros., 226 Pa. Super. 92, 312 A.2d 65 (1973); McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970). A nonsuit may only be entered in a clear case where the facts and circumstances lead unerringly to but one conclusion.
Skoda v. WestPenn Power Co., 411 Pa. 323, 191 A.2d 822 (1963). A decedent may not be held contributorily negligent as a matter of law unless the only reasonable inference arising from the evidence shows a want of due care. McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970). The presumption of due care is enough in itself to negate contributory negligence unless it is overcome by substantive evidence.
Appellants cite those cases holding that the higher degree of care when crossing between intersections has no application if the pedestrian has been on the highway a sufficient period of time for the motorist to see him and act to avoid hitting him. Cardiff v. Updegrave, 409 Pa. 535, 187 A.2d 644 (1963); Brown v. Jones, 404 Pa. 513, 172 A.2d 831 (1961). Since Mrs. Rosato was struck just north of the center line, appellants submit that she must have been in the road for a sufficient period of time for appellee Daniel to see her and act to avoid her. See, McNett v. Briggs, 217 Pa. Super. 322, 272 A.2d 202 (1970). Appellants have waived this issue, however, by failing to specifically object at the close of the court's charge.