It is true that this statement of the rule was based upon precedent authority, but sometimes in the same cases, notably in Ebersole, we have stated a different rule. We said in Mull v. Bothwell, 338 Pa. 233, 12 A.2d 561, that where a case is based on circumstantial evidence the test is whether the circumstances are such as to satisfy reasonable and well balanced minds that the accident resulted from the negligence of the defendant. In Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477, we had occasion to review this question and specifically disapproved the "only reasonable inference" test and all cases which stated it as a rule of law.
The appellant cannot possibly support her case with the incontrovertible physical fact rule. We said in Mull v. Bothwell, 338 Pa. 233, 238, that "The incontrovertible physical fact rule does not apply where there are possible variables and where moving objects are concerned." There are many possible variables in the instant case, even out of the appellant's own mouth.
And then, the roadway at the point of accident was not evenly surfaced; thus it was quite possible that at the very moment of impact, one or more of the Fanti wheels hit a higher elevation than that being traversed by the Hines truck. In Mull v. Bothwell, 338 Pa. 233, the defendant contended that the plaintiff could not have been injured as she stated, because the height of the auto door handle which struck her was 43 inches above the cartway while the height of the injury on her arm, above the cartway, considering the elevation of the curb on which she stood, was 53 inches. In affirming the judgment obtained in the lower court, this Court said: "The alleged mathematical impossibility of the injuries being inflicted as plaintiff contends they were, if she remained standing on the sidewalk, is the proposition most strongly pressed by defendant.
Plaintiff was not struck just as she entered the tracks and she could not be required to anticipate, as a matter of law, that defendant would accelerate its speed from very slow to very fast or be unable to stop its car until it had gone 40 or 50 feet beyond the point of accident. We have frequently decided that the doctrine of "incontrovertible physical facts" is inapplicable when such facts depend upon estimates of distances and the speed of moving objects: Streilein v. Vogel, 363 Pa. 379, 69 A.2d 97; Cunningham v. Pennsylvania Railroad Co., 352 Pa. 571, 43 A.2d 825; Hegarty v. Berger, 304 Pa. 221, 155 A. 484; Miller v. Measmer, 353 Pa. 18, 44 A.2d 284; Reiser v. Smith, 332 Pa. 389, 2 A.2d 753; Mull v. Bothwell, 338 Pa. 233, 12 A.2d 561. We agree with the trial judge that this is not a case where a person steps into a moving vehicle with or without looking, nor is it a case where a person sees a clearly impending danger and takes or assumes the risk.
It presents only conflicting theories as regards the happening of the accident. Mull v. Bothwell, 338 Pa. 233, 12 A.2d 561; Ross v. Riffle, 310 Pa. 176, 164 A. 913; Miller v. Siebert, 296 Pa. 400, 145 A. 909; Ford v. Cunningham Piano Co., 71 Pa. Super. 380; McGettigan v. Quaker City Automobile Co., 48 Pa. Super. 602, are relied upon by appellant. In all these cases there was positive testimony either as regards the contact or the facts so clearly described what actually happened that the only reasonable conclusion was that the defendant was negligent.
We have frequently decided that the doctrine of incontrovertible physical facts is inapplicable when dependent upon estimates of distances and the speed of moving objects. See: Hegarty v. Berger, 304 Pa. 221, 155 A. 484; Hostetler v. Kniseley, 322 Pa. 248, 185 A. 300; Reiser v. Smith, 332 Pa. 389, 2 A.2d 753; Mull v. Bothwell, 338 Pa. 233, 12 A.2d 561. See also: Cranston v. Baltimore O. R. Co., 109 F.2d 630, 633 (C.C.A. 3); Holland v. Kohn, 155 Pa. Super. 95, 38 A.2d 500; Knies v. Kraftsow, 156 Pa. Super. 296, 40 A.2d 122.
Bruggeman v. City of York, 254 Pa. 430, 98 A. 970; Flanigan v. McLean, 267 Pa. 553, 110 A. 370; Gausman v. Pearson Co., 284 Pa. 348, 131 A. 247; Long v. Frock, 304 Pa. 355, 156 A. 88; Pfendler v. Speer, 323 Pa. 443, 185 A. 618; Fix v. Pennsylvania Power Light Co., 346 Pa. 598, 31 A.2d 114.Tucker v. Pittsburgh, Cincinnati, Chicago St. Louis Rwy. Co., 227 Pa. 66, 75 A. 991; Ferry v. Philadelphia Rapid Transit Co., 232 Pa. 403, 81 A. 426; Kapuscianski v. Philadelphia Reading Coal Iron Co., 289 Pa. 388, 137 A. 619; Strobel v. Park, 292 Pa. 200, 140 A. 877; Mars v. Philadelphia Rapid Transit Co., 303 Pa. 80, 154 A. 290; Mull v. Bothwell, 338 Pa. 233, 12 A.2d 561; Giordano v. Clement Martin, Inc., 347 Pa. 61, 31 A.2d 504; Rowles v. Evanuik, 350 Pa. 64, 38 A.2d 255. The testimony in the present case to support the conclusion that Mario came into contact with the pipe was that given by two of plaintiffs' and two of defendant's witnesses.
Our courts have consistently stated that it is clearly within the province of a jury to resolve the issues of negligence and contributory negligence in such situations. Chapple v. Sellers, 373 Pa. 544, 96 A.2d 868 (1953) (overhang of truck body); Mull v. Bothwell, 338 Pa. 233, 12 A.2d 561 (1940) (protruding handle of car door); Ross v. Riffle, 310 Pa. 176, 164 A. 913 (1932) (overhang of car fender); Ford v.Cunningham Piano Co., 71 Pa. Super. 380 (1919) (overhang of truck body). The trial court's charge completely precluded this determination of liability, thus taking from the jury a function which was properly theirs.
This case does not come within the rule of incontrovertible physical facts. Ropele v. Stewart, 185 Pa. Super. 522, 528, 529, 137 A.2d 895, 898 (1958); Jones v. Bell TelephoneCo., 159 Pa. Super. 556, 559, 560, 49 A.2d 272, 274 (1946); Commonwealth v. Waters, 148 Pa. Super. 473, 475, 476, 25 A.2d 756, 757 (1942); Manning v. Pittsburgh Rwys. Co., 350 Pa. 402, 408, 39 A.2d 578, 580 (1944); Mull v.Bothwell, 338 Pa. 233, 238, 12 A.2d 561, 563 (1940). That rule is applicable only when the facts are positive, clear, indisputable and certain.
In each of the cases relied upon the testimony supported only one theory as to the manner in which the accident occurred. The incontrovertible physical facts rule does not apply where there are possible variables and where moving objects are concerned: Mull v. Bothwell, 338 Pa. 233, 12 A.2d 561; nor where the testimony of witnesses is needed to apply the facts to the issue in the case: Richardson v. Wilkes-Barre TransitCorporation, 172 Pa. Super. 636, 95 A.2d 365. Judgment affirmed.