Scalet v. Bell Telephone Co. of Pa.

Argued December 1, 1927. In the court below, the minor plaintiff, by her father as next friend, and the father, in his own right, sued to recover for the damages which they alleged they had sustained, and will hereafter sustain, through injuries to the minor, caused by the negligence of defendant; each plaintiff recovered a verdict, judgments were entered thereon, and from them defendant prosecutes these two appeals.

The assignments of error complain only of the refusal to give binding instructions for defendant, and to enter judgment in its favor non obstante veredicto. Under these circumstances all the evidence and inferences therefrom, favorable to plaintiffs, must be taken as true, and all unfavorable to them, if depending solely on testimony, must be rejected: Dunbar v. Preston, 285 Pa. 502. When these matters are the only ones to be considered, the courts do not inquire whether one party or the other has the weight of the evidence. On the questions actually raised by the assignments, the only point we are asked to decide is, do the verdicts depend for their support on evidence which is "shown to be untrue by incontrovertible physical facts, and contrary to human experience and the laws of nature?" Subject to a determination thereof, there was, admittedly, sufficient evidence to sustain the verdicts.

Measuring the evidence according to the rule above stated, we find that, on a dark and rainy night, the minor plaintiff was riding in an automobile with her parents and other relatives, along a public highway in the country, the macadamized portion being 17 or 18 feet wide and the rest an unpaved roadway. When the automobile was rounding a sharp curve in the road, it ran into one of the telephone poles of the defendant company, and the minor plaintiff received the injuries of which complaint is made. The car was on the macadamized part of the road, and was travelling at a moderate rate of speed. The pole into which it ran was out of plumb, and for months had hung slantingly over the road to the peril of all vehicles using it. Four or five months before the accident, a horse and buggy, the latter being of the same height as the automobile, while being carefully driven on the macadamized part of the highway, ran into the pole and was damaged; and other vehicles were compelled to go to the far side of the road in order to avoid like collisions. Shortly after the accident, defendant took the pole down, because of the splintering caused by the collision, and substituted another one for it. While it was lying on the ground, a measurement was made which showed that a mark on the pole, apparently caused by the top of the automobile at the time of the accident, was 11 1/2 feet above the ground line, though the height of the car was but 6 1/2 feet. Perhaps it should also be added, that, though a number of defendant's employees were at the place of the accident shortly after it occurred, none of them testified to car tracks in the dirt part of the road, as probably would have appeared, if defendant's contention was correct that the car must have been off the macadam when it struck the pole.

The incontrovertible physical facts which defendant alleges determine that the automobile could not have been on the macadam and struck the pole, are these: A witness for plaintiffs said that, when he drove over the road some time previously, he noticed the pole was planted in the ground about 3 1/2 feet from the macadam, and he judged the overhang at the top would probably be some 3 to 5 feet from the edge of the macadam. This was the extent of plaintiff's evidence on these two points, and it did not give the height of the pole at all. Testimony was introduced by defendant, however, regarding its height, and then, — by making two incorrect assumptions, (1) that it was not liable for its negligence, if the automobile, at the time of the accident, was travelling on the unpaved part of the road (where it had a legal right to be), and (2) that defendant's testimony as to the height of the pole must be accepted as true, despite the fact that the jury, on ample evidence, found otherwise, and, by applying the rule that the square of the hypothenuse of a right-angle triangle is equal to the sum of the squares of the two other sides, — claims to have arithmetically determined that the pole could not have leaned over the road sufficiently to enable the automobile to strike it, if that vehicle was on the macadam when the accident happened. If the figures as to the location of the base of the pole and the extent of the overhang were exact, and defendant's statement as to the height of the pole had to be accepted as accurate, despite the evidence and finding to the contrary, its arithmetic could not be successfully challenged, though even then it might still be liable for the accident. As the matter is, however, the calculation, for want of unimpeachable data on which to base it, does not conclusively establish that plaintiff's evidence regarding the accident cannot be true, and hence the only reason for these appeals wholly fails. Moreover, if we assume, as we must, that a collision took place between the top of the automobile (6 1/2 feet high), and the pole, at a point 11 1/2 feet from the ground line, and the base of the pole was 3 1/2 feet from the macadam, the mathematical rule upon which defendant relies, determines that, for a width of 5 1/2 feet across the macadam, the pole was low enough to be struck by the car.

But a brief reference need be made to the applicable authorities. In Fuher v. Westmoreland Coal Co., 272 Pa. 14, 17, we said that a case must be submitted to the jury, however strong the counter-vailing evidence may be, unless the "testimony [relied on to sustain the verdict] stands opposed to physical facts admitted, or the evidence thereof is of such a conclusive and unimpeachable nature as to amount to an admission." In Pfeffer v. Johnstown, 287 Pa. 370, we held that "The rule that evidence which contradicts incontrovertible facts cannot alone be made a basis for sustaining a verdict, has no relevancy where the testimony of witnesses is needed [as it was here] in order to apply those facts to the issue in the case." And in Hartig v. American Ice Co., 290 Pa. 21, we said that the testimony, relied on to establish the rule contended for, must be "clear, positive, credible, uncontradicted and indisputable." In this case, the basic testimony does not meet any of these requirements.

The judgments of the court below are affirmed.