Opinion
Argued January 12, 1950.
March 20, 1950.
Negligence — Automobiles — Evidence — Skid marks — Pedestrian — Position of victim's body and automobile — Noise of brakes — Nature of injury — Speed.
In an action for wrongful death, in which it appeared that plaintiff's decedent was struck and killed by an automobile driven by the individual defendant, it was Held that the evidence, including testimony as to the length of the skid marks, the relative position of decedent's body and the automobile, the screech of the brakes when applied, and the injuries sustained by decedent, was insufficient to establish that defendant was negligent; and that the evidence did establish as a matter of law that decedent was contributorily negligent.
Before MAXEY, C. J., DREW, LINN, STERN, STEARNE and JONES, JJ.
Appeal, No. 29, Jan. T., 1950, from judgment of Court of Common Pleas of Delaware County, June T., 1948, No. 562, in case of Anna N. Moore, Executrix under Will of Howard S. Moore, Deceased, v. Esso Standard Oil Company of Pennsylvania et al. Judgment affirmed.
Trespass for wrongful death. Before SWENEY, J.
The facts are stated in the opinion, by SWENEY, J., of the court below, as follows:
This case is before the court en banc upon plaintiff's motion to remove compulsory non-suit.
Viewing the evidence in the light most favorable to the plaintiff, the facts are that Howard S. Moore, aged 76 years, was struck and fatally injured on October 31, 1947, at about 8:20 p.m. by an automobile driven by James Mitzner, and owned by Esso Standard Oil Company. The automobile was traveling South on Church Lane, in the Borough of Yeadon, this County, and, at a point between Bailey Road and Redwood Avenue, the collision took place. Church Lane is thirty feet wide and the distance between Bailey Road and Redwood Avenue is 395 feet. There were no eye witnesses. After the collision the decedent was found lying 19 feet West of the East curb, 4 feet West of the white line which marked the center line of Church Lane and 101 feet North of the Redwood Avenue intersection. The nearest street lights were 86 1/2 feet North and 101 feet South of the decedent's body. The defendant's automobile was stopped on the West or right hand side of Church Lane about midway between the West curb and center line with "skid" or burn marks on the paving extending 23 feet North from the rear wheels of the automobile. The decedent's body was 20 feet 4 inches ahead of, or South of, defendant's automobile. The headlights of the automobile were lit; there was damage to the left front fender and the left front headlight lens was broken. The police examined the automobile and found the brakes, headlights, etc., in perfect working condition. After the collision, the defendant Mitzner told police that the decedent ran from the East side of Church Lane into the highway; the exact notation on the police report was "seen by operator of car when running into highway." Decedent's wife testified she was about a square away and heard a "screech" of brakes; she identified her husband upon arriving at the scene.
The decedent's injuries consisted of compound fractures of the right thigh and tibia, fracture of the fibula, compound fracture of the nose, marked laceration of the right supraorbital region, cerebral concussion and multiple abrasions of the body. He died five days after admission to a hospital from terminal bronchial pneumonia induced by the above injuries.
Two questions are here presented: (1) what effect, if any, does the presumption that decedent exercised due care have upon the question as to whether he was contributorily negligent as a matter of law; and (2) did plaintiff prove any negligence on the part of the defendants.
The burden was upon the plaintiff to prove the defendants negligent by a preponderance of the evidence, at the same time showing a case free from contributory negligence. When a person is killed in an accident a presumption arises that he exercised due care, based upon the assumption that there is, in man, an instinct of self preservation and the natural desire to avoid pain and injury to himself. Rowles v. Evanuik, 350 Pa. 64.
The question is whether this presumption is one of law or one of fact. It is our opinion that the presumption of due care is a presumption of fact. As such, the presumption is not evidence and should not be substituted for evidence; it has no probative quality. "In the deliberations of a jury there are permissible inferences (sometimes miscalled 'presumptions') rooted in general human experience and which have weight when the evidence, respectively, for and against a fact in issue leaves the jury in a 'twilight zone' of doubt as to that fact." Watkins v. Prudential Insurance Co., 315 Pa. 497.
One thing is clear and that is that the presumption of due care does not prove the defendant negligent; nor does the presumption take the case to the jury, without real proof of the defendant's negligence. The presumption has no significance, until plaintiff has made out a prima facie case of defendant's negligence. When the plaintiff has made out a case of the defendant's negligence and the defendant has come forward with his case, on the question of plaintiff's contributory negligence, the jury, in evaluating all of the evidence, have the right to consider and bear in mind that there is, in every man, an instinct of self-preservation which is ordinarily reflected in the exercise of due care and in the avoidance of danger.
In the instant case, since plaintiff suffered a compulsory non-suit, the presumption of due care on the part of the decedent has no force, effect or bearing on the issues here involved.
Upon the question of the decedent's contributory negligence, a pedestrian, who attempts to cross a street between intersections is not, by the mere attempt to do so, chargeable with contributory negligence as a matter of law. Anderson v. Wood, 264 Pa. 98; Hamilton v. Moore, 335 Pa. 433. However, crossing a street between intersections, crossing at an unusual place or in an unusual manner imposes upon the pedestrian a greater burden of care; before so crossing, he must use his faculties to ascertain the position of traffic on the street and avoid contact with it. Ross v. Pittsburgh Motor Coach Co., 156 Pa. Super. 45.
A Court is not justified in declaring a pedestrian contributorily negligent as a matter of law, unless his negligence was so palpable that there is no room for fair and sensible men to differ in their conclusions as to it. Tancredi v. M. Buten Sons, 350 Pa. 35. In the instant case, a man, aged 76 years, was crossing a busy street at night, between intersections, without street lights nearer than eighty feet and was seen "when running into the highway" by the defendant who was operating an automobile on his proper and legal side of the street. Although we concede that this is a close case, we feel that the Trial Judge was correct in his finding as to the decedent's contributory negligence.
The case really turns, however, upon the question of the proof by the plaintiff of the defendant's negligence. The evidence of such negligence 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, 291; Balducci v. Cutler, 354 Pa. 436, 439; Stanalonis v. Motor Express Co., 358 Pa. 426, 429. Proof of the happening of an accident is not proof that one of the parties was negligent. The rule, requiring extreme care at public crossings or intersections on the part of automobile drivers is not applicable to accidents which occur between intersections. Hadhazi v. Zero Ice Corp., 327 Pa. 558. The pedestrian must have been on the highway long enough to be seen by a careful driver, in time to avoid hitting him. Zalec v. Heckel, 340 Pa. 116.
The plaintiff contends that the negligence of the defendant was excessive speed and that, although actual proof of speed is lacking, the jury should have been given the right to infer from the length of the skid marks, from the relative position of decedent's body and the automobile, from the "screech" of brakes and from the injuries sustained by the decedent that the defendant driver was negligent. With this contention, we cannot agree.
In the first part, the police testified that, mechanically, the defendant's automobile was in good shape. The distance of the skid marks on the roadway from the point of beginning to the rear wheels of the automobile was 23 feet. In Miller v. Carey, 117 Pa. Super. 218, a "tire burn" 90 feet long indicated the distance the driver was from the pedestrian when he first saw him; in Nalevanko v. Marie, 328 Pa. 586, "skid" marks 100 feet long were held to be evidence of fast driving and lack of control on the part of the driver; in both cases, the plaintiff made out a prima facie case of speed and, hence, negligence on the part of the driver. However, we cannot say that 23 feet skid marks hold any such implication.
The body of the decedent was found 20 feet 4 inches in front of defendant's automobile. Plaintiff asks us to infer that this indicates that the body was hurled through the air for this distance and that this indicates excessive speed on the part of the driver. However, it is just as possible to infer that the decedent rolled the distance or a great part of it and this uncertainty makes it impossible for the jury to base a finding of fact in favor of the plaintiff.
Decedent's wife heard the screech of brakes when she was about a square from the accident; but this is no evidence of negligence on the part of the driver. Hadhazi v. Zero Ice Corp. (supra).
And, again, the nature of the injuries are not such as to afford a basis for fastening negligence upon the defendant. Decedent was 76 years of age, his bones were necessarily more brittle than those of a younger person and we feel that decedent's injuries could have been the result of a collision with a properly driven automobile.
Nor do we feel that by taking all four of these factors together do we have sufficient evidence to submit to a jury, so that a jury might be able properly to pass upon the negligence of the defendant driver.
As was well said in McAvoy v. Kromer, 277 Pa. 196, 198: "Was he run down by the car, the driver of which could have seen him a sufficient length of time to have guarded against it? The accident occurring between crossings, did he suddenly run in front of the car; was he crossing the street heedlessly; was he crossing the street without regard to traffic . . .; did he reach the south side of the street safely and suddenly dart back in front of the car; or did the car suddenly swerve, striking him? All these circumstances are left to conjecture; defendants might have been responsible for one or more of the causes and not so as to others. In such cases, where it is equally probable the accident may have resulted from either cause, there can be no recovery: Alexander v. Pennsylvania Water Co., 201 Pa. 252."
Because we believe plaintiff did not prove the defendants negligent by a preponderance of the evidence and because we believe the decedent himself contributed to his injury, the plaintiff's motion must be dismissed.
Plaintiff appealed.
R. Winfield Baile, with him George W. Thompson, for appellant.
D. Malcolm Hodge, E. P. Balderston, Jr., and Hodge, Hodge Balderston, for appellees, were not heard.
The judgment of the court below is affirmed on the opinion of Judge SWENEY.