Opinion
April 12, 1967.
June 16, 1967.
Negligence — Automobiles — Evidence — Burden of proof — Proof of mere happening of accident — Finding by jury that neither party had met burden of persuasion — Charge to jury.
1. In an action of trespass for injuries alleged to have resulted from the negligence of defendant, the burden is on plaintiff to prove that defendant was negligent and that his negligence was the proximate cause of the accident.
2. The mere happening of an accident does not prove negligence.
3. In cross actions of trespass resulting from a collision between two automobiles, which caused injuries to both drivers and their respective passengers, in which it appeared that the testimony was conflicting concerning the position of the automobiles immediately prior to the collision; and that the jury returned verdicts finding both drivers "equally non-negligent, based on the evidence presented", which verdicts were molded by the court in favor of the respective defendants; it was Held that the jury could rationally find that neither party had met its burden of persuasion, and that it was not unreasonable for the trial judge to charge that the jury might so find.
MONTGOMERY, J., would grant a new trial.
Argued April 12, 1967.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
Appeals, No. 295, April T., 1966, and No. 7, April T., 1967, from order of Court of Common Pleas of Allegheny County, Oct. T., 1963, No. 2266, and judgment of Court of Common Pleas of Allegheny County, Jan. T., 1964, No. 2719, in cases of Dorothy Morgenstern et al. v. Michael J. Kotik et al.; and Michael J. Kotik et al. v. David Morgenstern. Decision affirmed.
Cross actions of trespass for personal injuries, consolidated for trial. Before FIOK, J.
Verdicts entered finding both driver-plaintiffs "equally non-negligent, based on the evidence presented"; verdicts molded in favor of respective defendants, and judgments entered thereon. Respective plaintiffs appealed.
James R. Duffy, with him John M. Tighe, and McArdle, Harrington, Feeney McLaughlin, for Morgensterns.
Thomas J. Reinstadtler, with him Egler, McGregor and Reinstadtler, for Kotiks.
On April 26, 1963, automobiles operated by David Morgenstern and Michael Kotik collided, causing injury to both drivers and their respective passengers. Each sued the other and their cases were consolidated.
Testimony was conflicting concerning the position of the automobiles immediately prior to the collision. The jury returned verdicts finding Morgenstern and Kotik "equally non-negligent, based on the evidence presented." These verdicts were molded by the court in favor of the respective defendants.
Appellants contend there was no basis for the jury to rationally determine that no negligence existed. They further contend it was error for the court to charge the jury they might find both drivers were not negligent.
The fallacy in this argument lies in its failure to consider that it is the burden on each party to prove the other was negligent and that such negligence was the proximate cause of the accident. The mere happening of an accident does not prove negligence. Fegely v. Costello, 417 Pa. 448, 208 A.2d 243 (1965); Cushey v. Plunkard, 413 Pa. 116, 196 A.2d 295 (1964). The jury could rationally find that neither party had met its burden of persuasion and it was not unreasonable for the trial judge to so charge.
Decision affirmed.
MONTGOMERY, J., would grant a new trial.