Staley, Chief Judge, and Maris and Van Dusen, Circuit Judges.
This is an appeal by Mary K. Wilkinson, third party defendant in the district court, from a denial of her motion for judgment notwithstanding the verdict or, alternatively, for a new trial.
Appellant's grandmother, Agnes Haldeman, a Delaware resident, brought suit against the Bell Telephone Company of Pennsylvania and its employee, W. Herbert Fry, for injuries sustained in a motor vehicle accident. Mrs. Haldeman had been riding in the front seat of a car driven by appellant when it collided with a Bell Telephone truck driven by Fry. In a suit on liability issues alone, the damages having been stipulated, the jury returned a verdict in favor of Mrs. Haldeman against the appellees, Bell and Fry. In the third party action on the issue of appellant's joint liability, the jury found in favor of appellees and against appellant.
The accident which precipitated this suit occurred on the afternoon of October 28, 1961, in Chester County, Pennsylvania, where Strasburg Road intersects the two-lane state highway known as Buck Run Road. It was a clear, sunny day; the road surface was dry and visibility good. Appellant, then about 17 years old, was driving her elderly grandmother in the family's Opel sedan. She was proceeding northwardly along Buck Run Road, a through highway with a 50 m.p.h. speed limit, at a speed not faster than 40 to 45 m.p.h. The road was only a few miles from appellant's home and one she had travelled often. Before entering the intersection with Strasburg Road, appellant passed a "Slow" sign located on a hilltop about 400 feet south of the intersection. Anticipating no other traffic as she approached the intersection, she continued downhill toward Strasburg Road in the proper right hand lane at the same speed of from 40 to 45 m.p.h. She did not decrease her speed at any time before she entered the intersection and became involved in the collision.
Appellee, Fry, was driving his Bell Telephone truck eastwardly along Strasburg Road approaching Buck Run Road. Strasburg Road intersects Buck Run Road at a 72 degree angle; on Strasburg Road there are "Stop" signs in both directions controlling traffic crossing and turning into Buck Run Road. Some distance before these "Stop" signs are "Stop ahead" signs. Extending westwardly along the southerly side of Strasburg Road from the westerly side of Buck Run Road, there is an earthen bank which rises from about six inches at the westerly side of Buck Run Road to a height of five feet at a point about 87 feet west of Buck Run Road. The bank then continues to a height of seven feet at a distance of 97 feet from the west side of Buck Run Road.
Fry was driving along Strasburg Road at a speed of about 35 m.p.h.; he was looking for trouble in the overhead telephone lines. While his attention was so distracted he failed to see or stop at the "Stop" sign at the western approach to Buck Run Road. He also failed to look for other vehicles in or approaching the intersection but instead proceeded into the intersection at the same speed of about 35 m.p.h. where he collided with the automobile driven by appellant. The collision caused appellant to lose control of the automobile; it flipped over and eventually came to rest at the northeast corner of the intersection.
On this appeal appellant contends that she is entitled to judgment notwithstanding the verdict because under the evidence, all of which was Bell's, Bell did not establish that she was negligent, or if she was negligent, it was not shown that her act or omission was the proximate cause of the injury. Of course, when probing the record to see whether there is any merit to appellant's prayer for judgment n.o.v., we are bound to take the evidence and all the reasonable inferences therefrom in the light most favorable to the verdict winners. Massaro v. United States Lines Co., 307 F.2d 299 (C.A.3, 1962); Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 (1965); Pritts v. Wigle, 414 Pa. 309, 200 A.2d 386 (1964). With this in mind we now turn to the issue of appellant's alleged negligence.
Little time need be devoted to this point. For although we are strongly inclined to believe, as a matter of law, that appellant could not have been negligent under the circumstances of this case, it is unnecessary for us to so decide. We by-pass this issue because we are convinced that even if appellant had been negligent, such negligence could not have been the proximate cause of the accident.
It is axiomatic that in the trial of a case like this plaintiffs
"* * * must make it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." Restatement (Second), Torts § 433B, Comment a at 442 (1965).
Appellees had the burden of proving that if appellant had not been negligent no harm would have been sustained. Collichio v. Williams, 311 Pa. 553, 166 A. 857 (1933); Stubbs v. Edwards, 260 Pa. 75, 103 A. 511 (1918); Rankin v. Carroll, 149 Pa.Super. 158, 27 A.2d 487 (1942); Restatement (Second), Torts § 432(1) (1965). This they failed to do.
Their failure in this regard can be demonstrated by resorting to their theory of the case and to their own evidence. Appellees contend that if appellant had looked to her left as she approached the intersection, Bell's truck, seven feet in height, would have been first visible at least 102 feet west of the center line of Buck Run Road. They then go on to state, as if it were a certainty, that if appellant had seen the truck ...