Summary
In Zimmer v. Clark, 103 Pa. Super. 145, 156 A. 815, 816, in referring to the physical facts rule, the court said: "Such 'incontrovertible physical facts' are never established by oral evidence as to the position, speed, etc., of movable objects."
Summary of this case from Louisville and Nashville Railroad Co. v. TuckerOpinion
September 30, 1931.
November 11, 1931.
Negligence — Automobile — Evidence — Incontrovertible physical fact — Case for jury.
The position of a moving automobile which causes an injury, as shown by certain evidence, cannot be called an incontrovertible physical fact, when other evidence or inferences therefrom show its position to be elsewhere at the time of the accident.
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 in order to apply those facts to the issue in the case.
Appeal No. 62, October T., 1931, by defendant from judgment of C.P., No. 2, Philadelphia County, September T., 1930, No. 5021, in the case of Marilyn Zimmer, by her parents and next friends Edward Zimmer and Anna Zimmer, and Edward Zimmer and Anna Zimmer in their own rights v. Andrew Clark.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Trespass to recover damages for personal injuries. Before STERN, P.J.,
Verdict for Edward Zimmer and Anna Zimmer in the sum of $50 and for Marilyn Zimmer in the sum of $300 and judgments entered thereon. Defendant appealed.
Error assigned, among others, was refusal of defendant's motion for binding instructions.
Matthew Randall, and with him Clinton A. Sowers, for appellant.
John A.M. McCarthy, for appellee.
Argued September 30, 1931.
This action was brought to recover the damages sustained by a four year old child, and her parents, by her being knocked down and run over by defendant, while driving his automobile. From the judgment in the minor plaintiff's favor this appeal is taken.
The case raised questions of fact which were submitted by the trial judge to the jury in a charge to which no exceptions were taken, beyond the refusal to give binding instructions for the defendant.
Appellant contends that the incontrovertible physical facts adduced on the trial were such as to prevent a recovery by the plaintiff; but our Supreme Court has decided 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 in order to apply those facts to the issue in the case": Scalet v. Bell Telephone Co., 291 Pa. 451, 456; Pfeffer v. Johnstown, 287 Pa. 370. The position of a moving object which causes an injury, as shown by certain evidence, cannot be called an incontrovertible physical fact, when other evidence or inferences therefrom show the position of the object to be elsewhere at the time of the accident: Snyder v. Penn Liberty Refining Co., 302 Pa. 320; Schaeffer v. Reading Transit Co., 302 Pa. 220 . Such "incontrovertible physical facts" are never established by oral evidence as to the position, speed, etc., of movable objects: Hegarty v. Berger, 304 Pa. 221, 226.
The evidence of Mrs. Strotbeck as to the position of defendant's automobile when it struck the child, relied upon by the appellant in urging that judgment non obstante veredicto be entered for him, is of the character excepted by the Supreme Court from the operation of the rule respecting the "incontrovertible physical facts," and was for the jury with the other evidence in the case.
The judgment is affirmed.