Flanigan v. McLean , 267 Pa. 553 ( 1920 )

Opinion by

Mr. Justice Walling,

On the afternoon of October 20, 1917, plaintiff was injured near the northwest corner of Broad street and Windrim avenue, Philadelphia, as the result, he avers, of being struck by one of defendant’s autotrucks. Plaintiff was not mentally able to testify at the trial and only one witness, a Mr. Stauffer, was called to prove the accident. He was standing about 175 feet south of the corner on the east side of Broad street, and saw the truck coming south near the west curb of that street and about 200 feet north of the corner. He estimates its speed at about 20 miles an hour, and says there was no other vehicle in sight, and, as the truck turned west around the corner into Windrim avenue, lie saw plaintiff rolling in the street about five feet from tbe rear end of tbe truck, wbicb stopped in about 20 feet and later took plaintiff to tbe hospital. Tbe witness did not bear a born blown, nor see plaintiff until after tbe accident, and saw no contact between him and tbe truck, but infers be was struck by tbe back part of tbe latter. This appeal by plaintiff is from an order of tbe court below overruling his motion to take off a judgment of compulsory nonsuit.

Plaintiff was unfortunate because of bis inability to testify, but, on tbe evidence submitted, tbe nonsuit was properly granted. Tbe mere fact that an automobile 'comes in contact with a pedestrian, or with another vehicle, raises no presumption of negligence against tbe chauffeur: Presser et al. v. Dougherty, 239 Pa. 312; see also Allen v. Kingston Coal Co., 212 Pa. 54.

Tbe truck was on a broad open street, free from obstructions, and in tbe suburbs; nothing appears to suggest that tbe rate of speed was unlawful or negligent. Tbe statute then fixed tbe maximum rate of 24 miles an hour (sec. 14, Act of July 7, 1913, P. L. 672, 680) and now at 30 (sec. 19, Act of June 30,1919, P. L. 678, 689). Of course even a less rate may be negligent, depending on conditions, but tbe evidence here discloses nothing to suggest danger or even to show tbe approximate speed of tbe truck at tbe corner where tbe accident happened. Tbe truck was stopped in twenty feet and a lack of proper control is not shown; and tbe fact that a witness some distance away did not bear tbe born signifies nothing. He does not say be was listening for signals or that tbe born was not blown. True, tbe affirmative testimony of one witness as to lack of signals may take a case to tbe jury, but there is no such testimony here. Moreover, theré is nothing to indicate that speed or lack of signals bad anything to do with tbe accident: see Eastburn v. United States Exp. Co., 225 Pa. 33. In fact, it does not appear bow plaintiff came to be in tbe street, which way he was going, whether the truck ran against him or he against it, or neither; and whether he was attempting to cross the street or to get off the truck, or fell from it, is all matter of conjecture. Both he and the chauffeur are presumed free from negligence, neither can be charged therewith merely because of the accident, and plaintiff’s case fails because he shows no specific act of negligence that caused his injury: Stern v. Reading, 255 Pa. 96; Reddington v. Phila., 253 Pa. 390; Smith v. Phila. & Reading Ry. Co., 232 Pa. 323; Welsh v. E. & W. V. R. R., 181 Pa. 461.

Where a defendant is responsible only for qne of two or more causes, and it is equally probable that the accident may have resulted from either there can be no recovery: Alexander v. Penna. Water Co., 201 Pa. 252. As no one saw plaintiff before the accident, so far as shown by this record, it is just as probable that he was riding on the rear end of the truck and was thrown therefrom, when it turned the corner, as that he was struck while attempting to cross the street, in fact more probable as he was not seen to fall in front of the truck but rolling behind it. Viewing the evidence, as we must, in the light most favorable to plaintiff, still it fails to sustain his case (Virgilio v. Walker & Brehm, 254 Pa. 241), for there is nothing upon which to base a verdict except conjecture, and that is not sufficient.

No affidavit of defense was filed as provided by sections 6 and 13 of the Practice Act of May 14,1915, P. L. 483, the latter of which is, “In actions of trespass the averments, in the statement, of the person by whom the act was committed, the agency or employment of such person, the ownership or possession of the vehicle, machinery, property or instrumentality involved, and all similar averments, if not denied, shall be taken to be admitted in accordance with section six; the averments of the other facts on which the plaintiff relies to establish liability, and averments relating to damages claimed, or their amount, need not be answered or denied, but shall be deemed to be-. put in issue in all cases unless expressly admitted.” Appellant contends that, by the omission to file an affidavit of defense, defendants admit the averment in plaintiff’s statement that their truck came in contact with the latter. We cannot adopt this contention. Doubtless the legislative intent was, in the absence of contradiction by affidavit of defense, to dispense with proof of certain formal averments as to the instrumentality, or agency of the person, involved in the occurrence and charged with responsibility therefor — not to relieve a plaintiff from proving the vital averments of his declaration as to injury, negligence, damages, etc., or to require defendant to specially plead substantial defenses, like its own lack of negligence or the contributory negligence of plaintiff. For example, the failure to file an affidavit of defense in the present case constitutes an admission by defendants that the instrumentality charged with the accident was their truck, doing their business and in charge of their chauffeur; but the burden is still upon plaintiff to prove the accident and other facts necessary to support his case. In like manner, a defendant’s admission of ownership of a building would not enable a plaintiff to recover damages for falling therefrom without proof of the fall; nor would a carrier’s admission that he owned the car enable a passenger to recover without proof of an accident. Here the accident is the alleged collision, which is not established by defendants’ admission of ownership and control of the truck; hence, the lack of proof that it came in contact with plaintiff is another reason why his case fails.

The order refusing to take off the judgment of non-suit is affirmed.