# Gregorich v. Pepsi-Cola Metropolitan Bottling Co. > Superior Court of Pennsylvania · September 23, 1974 · 230 Pa. Super. 144 URL: https://www.frixlaw.com/law-library/cases/9649881 ## Case - **Full name:** Gregorich, Appellant, v. Pepsi-Cola Metropolitan Bottling Company, Inc. - **Court:** Superior Court of Pennsylvania - **Decided:** September 23, 1974 - **Citations:** 230 Pa. Super. 144; 327 A.2d 171; 1974 Pa. Super. LEXIS 2426 - **Precedential status:** Published - **Opinion:** Dissent by Price - **Judges:** Watkins, Jacobs, Hoffman, Cercqne, Price, Van Voort Spaeth - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9649881 ## Opinion text Dissenting Opinion by Price, J.: I dissent from the majority’s reversal of the non-suit judgment entered by the lower court at the close of the plaintiff’s case. The majority finds that the plaintiff had submitted sufficient evidence at trial to create a question as to defendant’s negligence and also that his case was free of evidence of contributory negligence by the plaintiff. I disagree on the basis that plaintiff demonstrated no evidence of negligence on the part of the defendant and that plaintiff’s evidence establishes that plaintiff was contributorily negligent as a matter of law. Therefore, I would affirm the judgment of compulsory nonsuit. This appeal involves a plaintiff-pedestrian who was struck by defendant-driver’s truck as he crossed between intersections. The plaintiff had left the curb and passed in front of a temporarily stopped bus and was struck at a point one-fourth of the way from the center of the roadway to the opposite side. Another temporarily stopped bus was at the opposite curb. The truck had passed between the buses by straddling the center of the street. It was dark and there was snow at the curbside and on the ground; however, visibility was unobstructed and headlights could be seen a couple of thousand feet. The injuries to the plaintiff were such as to cause him to be unable to remember any of the events of the day of the accident or several days thereafter. One witness, who observed the accident, testified for the plaintiff. The lower court, at the conclusion of plaintiff’s case, granted defendant’s motion for a compulsory non-suit. *152 The majority finds evidence sufficient to create a question for tlie jury as to whether the defendant was negligent by the fact that defendant, in an effort to pass the stopped bus, had operated his vehicle on the wrong side of the highway immediately before striking the plaintiff. 1 In support of this position, the majority cites Matkevich v. Robertson, 403 Pa. 200 , 169 A. 2d 91 (1961) and O’Neil v. O’Neil, 204 Pa. Superior Ct. 485 , 205 A. 2d 687 (1964), for the proposition “that when an automobile is operated on the wrong side of the highway, that fact in itself is prima facie evidence of negligence. .. .” 403 Pa. at 202 , 169 A. 2d at 93 . In both Matkevich and O’Neil , the defendant-driver skidded because of weather conditions into the wrong lane and collided with the other vehicle involved. Both of these cases can be distinguished in that in the instant appeal the de *153 fendant was lawfully on the “wrong side” of the street in an attempt to pass the stopped bus. See Weaver v. Pickering, 279 Pa. 214 , 123 A. 777 (1924). 2 Here the portion of the cartway used by the truck was the only portion of the cartway available to pass a stopped vehicle, since a bus had also stopped on the other side of the street. Further, the truck did not collide with another vehicle, but struck a pedestrian crossing between intersections, not necessarily a danger to be anticipated when using a portion of the opposite lanes of travel. It must also be noted that before a motorist can be held liable for a collision between his automobile and a pedestrian crossing the street at a place other than a regular pedestrian crossing at an intersection, it must be shown that the pedestrian was on the street for a sufficient length of time to be seen and far enough away to enable the motorist to bring his automobile under control. See, e.g., McNett v. Briggs, 217 Pa. Superior Ct. 322 , 272 A. 2d 202 (1970); Cason v. Smith, 188 Pa. Superior Ct. 376 , 146 A. 2d 634 (1958). The plaintiffs eyewitness in her testimony did not provide this evidence. The witness could not place the relative position *154 of the pedestrian and the truck at the time of the accident. The witness also testified that the defendant was traveling within the speed limit. There was no evidence that the truck was traveling at an unreasonably high rate of speed in light of the meteorological conditions, and that the driver had an unobstructed view nor that he saw the plaintiff. 3 The mere happening of an accident does not prove negligence on the part of an individual, Bailey v. Gibbs, 414 Pa. 238 , 199 A. 2d 460 (1964), and the fact that the defendant’s truck straddled the middle of the road is not prima facie evidence of negligence. Weaver v. Piekermg, supra. The testimony, viewed in a light most favorable to the plaintiff, proves nothing more than the occurrence of a pedestrian struck by a truck, and there is no evidence of negligence in the operation of the defendant’s truck or other circumstances from which a jury could logically find or reasonably infer negligence. The majority also found that plaintiff’s own evidence did not establish contributory negligence. Because the injuries suffered by the plaintiff caused him to lose his memory and recollection of the accident facts, the majority finds that he is entitled to a presumption of due care. As a result of this presumption and the fact that the eyewitness could not testify whether plaintiff properly watched for oncoming traffic, the majority reasons *155 contributory negligence could not be inferred from the plaintiff’s actions. While it is true that where a party’s mind is blank as to an accident and all its incidents, the presumption is that he did all the law required of him to do and he was not guilty of contributory negligence, Auel v. White, 389 Pa. 208 , 132 A. 2d 350 (1957), 4 this pre *156 sumption may be rebutted where the facts and proof reasonably establish that due care was not used. Metro v. Long Trans. Co., 387 Pa. 354 , 127 A. 2d 716 (1956); Grutski v. Kline, 352 Pa. 401 , 43 A. 2d 142 (1945). In the instant appeal the facts overcome the presumption of due care, and show plaintiff to be negligent. The fact that a pedestrian is struck on a street at a point between intersections does not of itself establish that he was guilty of contributory negligence. Shuman v. Nolfi, 399 Pa. 211 , 159 A. 2d 716 (1960); Nugent v. Joerger, 387 Pa. 330 , 127 A. 2d 697 (1956). In such an event, the pedestrian must use the requisite degree of care under the circumstances. Ulmer v. Hamilton, 383 Pa. 398 , 119 A. 2d 266 (1956). It is well settled that the care required of a plaintiff crossing a street between intersections is the duty to look and it “rests at all times upon everyone in the use of streets . . . and where one steps into a busy street and is immediately struck by a passing vehicle which he could have seen had he looked, he is barred by his own negligence.” Dando v. Brobst, 318 Pa. 325, 328 , 177 A. 831, 832 (1935). Since the undisputed testimony for plaintiff disclosed that he was struck just after he crossed the center line, he must have, or at least should have seen defendant’s vehicle approaching. Once plaintiff passed the stopped bus, there was nothing to show that plaintiff’s view was in any way obscured, and, therefore, he was bound to see that which must have been plainly visible at the time it became his duty to look. “The inference is unavoidable that if plaintiff had looked he could have averted the danger. ... If he failed to look he was negligent and if he looked he must have seen defendant’s moving vehicle and in stepping in front of it or into it was equally negligent.” Auel v. White, 389 Pa. 208, 215 , 132 A. 2d 350, 354 (1957) (plaintiff *157 negligent when traversing a highway and struck after crossing the center line). I would find the defendant-driver free of negligence and plaintiff contributorily negligent, and, therefore, affirm the lower court order of compulsory nonsuit. Plaintiff in his brief also contends that the defendant was negligent as a matter of law in that he violated the “assured clear distance” rule. The rule requires that a driver keep his vehicle under such control that he can always stop within the distance that he can clearly see. Griffith v. Weiner, 373 Pa. 184 , 95 A. 2d 517 (1953). The inherent visibility of the object to be observed is important, Koelle v. Philadelphia Electric Company, 443 Pa. 35 , 277 A. 2d 350 (1971), as well as the fact that the assured clear distance varies according to the visibility at the time and other attending circumstances. Reifel v. Hershey Estates, 222 Pa. Superior Ct. 212 , 295 A. 2d 138 (1972). As the lower court properly noted in its opinion, “[tjhere was no evidence establishing the visibility of the driver or what it could have been. We consider that this accident occurred in the dark early morning between intersections and that one driving under the circumstances could assume that a pedestrian would not cross the cartway as plaintiff did, or, if one did he would be cautious to anticipate that vehicles would be moving on the cart-way and yield to them. Further, and most important, we have no evidence as to when or where the Pepsi truck was stopped, therefore, a jury would be unable to determine whether the truck stopped in a distance equal to the length of the driver’s vision or his headlight beam, depending upon the illumination.” In Weaver , a pedestrian walked between two parked ears onto the street and was struck by a car which had been temporarily driven beyond the center of the cartway to avoid an obstruction, “a line of standing automobiles.” The court in finding the plaintiff eontributorily negligent, noted that “[v]ehicles [are] justified in turning to the left to avoid an obstruction ... so it cannot be blindly assumed that they will under all conditions and at all times travel only on the right-hand side of the street, as it is not possible to do so.” 279 Pa. at 218 , 123 A. at 778 . See The Vehicle Code, Act of April 29, 1959, P. L. 58, §1004, as amended (75 P.S. §1004), whieh provides in part that a “driver of a vehicle . . . shall drive as closely as possible to the right-hand edge or curb . . ., unless it is impracticable to travel on such side of the highway . . . .” [Emphasis added]; Bailey v. Gibbs, 414 Pa. 238 , 199 A. 2d 460 (1964) (defendant not negligent in passing stopped bus on the left and striking pedestrian crossing the street). In Bailey v. Gibbs, 414 Pa. 238 , 199 A. 2d 460 (1964), a case very similar to the instant appeal, plaintiff-pedestrian stepped from in front of a stopped bus and was immediately struck by an automobile as it passed the bus on the left-hand side. The court reversed the lower court and held that defendant-driver was entitled to judgment non obstante veredicto, and noted that the defendant, even if he had seen plaintiff hesitate before stepping in front of the bus “was under no obligation to anticipate that [the plaintiff would] suddenly proceed further into the cartway . . . [The defendant] had the right to expect that the others involved would exercise proper care.” 414 Pa. at 242 , 199 A. 2d at 462 . The reliance of the majority on Robinson v. Raab, 216 Pa. Superior Ct. 397 , 268 A. 2d 225 (1970) as an application of the presumption of due care is inapposite. In Robinson , the plaintiff was rendered unconscious following an intersection collision and remained so for about 1% hours. He suffered from amnesia and was unable to testify as to the accident facts. It was not contested that the light was green in favor of the plaintiff. The court noted that although a motorist crossing an intersection with the controlling light must nevertheless exercise a high degree of care for his safety, there is no burden imposed on Mm to prove that he exercised that care. Thus, “in the absence of proof that he did not look before he proceeded to cross the [street, the court has] no right to infer that he did not do so." 216 Pa. Superior Ct. at 401 , 268 A. 2d at 226 . The court, having found a prima facie ease of negligence by the defendant-driver and lack of negligence by the plaintiff, reversed the compulsory nonsuit. Factually, Robinson can be easily distinguished from the instant appeal. Robinson involved an accident between two vehicles in an intersection, while in this appeal the accident took place at a point between intersections and involved a pedestrian and a vehicle. In Robinson , the plaintiff’s proof neither proved nor disproved whether he exercised the proper degree of care for his safety, and, therefore, in order to show negligence on plaintiff’s part, evidence presented by defendant would be necessary. In the instant case, the plaintiff’s proof was sufficient to allow an inference of negligence. In light of defendant’s lack of negligence and the high standard of eare required by a pedestrian crossing between intersections, the lower court could reasonably infer that under the circumstances plaintiff being struck upon stepping from in front of a stopped bus was negligence. See Bailey v. Gibbs, 414 Pa. 238 , 199 A. 2d 460 (1964); Auel v. White, 389 Pa. 208 , 132 A. 2d 350 (1957). In any event, a loss of memory can not overcome the obvious facts. See Snyder v. Union Paving Co., 170 Pa. Superior Ct. 112 , 84 A. 2d 373 (1951). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649881. Public record. Not legal advice.