186 A. 70 | Pa. | 1936
Argued May 18, 1936. On the morning of February 2, 1932, plaintiff Albert E. Culver was driving his automobile east on the southerly side of Main Street in the Borough of Emaus en route from Laurel, Delaware, to Lehigh University, Bethlehem. The wife plaintiff Nellie G. Culver, and her sister, plaintiff Mary H. Cooper, were riding on the rear seat. Culver desired to pass a small Ford car driving immediately ahead of him and for that purpose turned left and straddled the right or southerly rail of the trolley track of defendant company. According to the version of Culver and his witnesses, he was driving at this time at a rate of from 18 to 20 miles per hour and the street was dry. After passing the Ford car, he turned diagonally right, at a point about 200 feet east of Keystone Avenue, in order to come again to the southerly side of the street; his left front wheel passed over the *506 southerly rail but his left rear wheel caught in it; the car slid for a distance of from five to ten feet before the wheel freed itself, and as it did so the car was pitched to the side of the street into a telegraph pole. All of the plaintiffs were seriously injured. There was abundant testimony to the effect that the accident was due to the fact that, at the point where the left rear wheel came in contact with the rail, the latter protruded from 11/2 to 3 1/2 inches above the level of the street on the inside of the track. This situation resulted from a depression in the brick paving immediately inside the rail for a distance of several feet. Witnesses stated that the condition had existed for a period of at least six months prior to the accident.
Two suits were brought, one by Culver and his wife, and the other by Mary H. Cooper. They were tried together. The jury found a verdict for Culver in the sum of $30,000, for Nellie G. Culver, $5,000, and for Mary H. Cooper, $14,000. Defendant filed motions for judgment n. o. v., which were overruled, but its rules for a new trial were made absolute. There are two appeals, one by defendant from the refusal to grant its motions for judgment n. o. v., the other by plaintiffs from the granting of a new trial.1
First considering defendant's appeal, the company concedes, as it must, that it was under a duty to keep the rails and the track between them in a reasonably safe condition so that persons crossing on foot or in vehicles, and themselves using proper care, would not be injured by reason of failure on the part of defendant to fulfill *507 this obligation. Defendant was the successor of the Allentown Emaus Street Railway Company, which had been granted by the borough the right to operate an electric street railway on Main Street; the service had been discontinued a few months before the accident, but the rails remained in place.
"The duty of the defendant to keep the tracks in repair was clear and imperative. It was bound to know that use and that climatic influences would produce defects in the rails, and it was bound to make such a continued inspection as would detect those which were apparent": Gilton v. Hestonville, Mantua Fairmount Passenger Ry.,
"It is recognized, with substantial unanimity, that a railway company, whether general or passenger, is bound to keep the portions of streets occupied by its right-of-way in good condition, even in the absence of any express contract or statutory direction to that effect": Reading v. United TractionCo.,
Defendant, admitting these general principles, contends that in the present case the elevation of the rail was not great enough to justify an imposition of liability. It is true that a defect in a highway may be so insignificant a jury should not be allowed to find that its maintenance constitutes negligence. Thus in McGlinn v. City of Philadelphia,
The statements of claim as originally filed in the present case did not allege that the defective condition of the rail had existed prior to the accident. Defendant contends therefore, since liability exists only if actual or constructive notice be shown, that the statements of *509 claim did not set forth a cause of action. After the statute of limitations had intervened and the case was called for trial, plaintiffs orally moved to amend the statements by adding an allegation that the protruding rail had existed for a considerable period of time prior to February 2, 1932, and defendant should have known of the condition. Defendant pleaded surprise; a juror was withdrawn and the case continued. Shortly thereafter, on written petitions filed by plaintiffs to amend the statements, the amendment was allowed by formal order of the court. Defendant contends that this was error, that therefore all the evidence introduced at the trial to show the prior existence of the defect in the rail was improperly admitted, and that if such evidence had been excluded no liability was established by plaintiff's case. It appears, however, that no exception was taken by defendant to the allowance of the amendment, and it became, for all intents and purposes, as much a part of the statements as if originally embodied therein. Moreover, the statements of claim as filed alleged that defendant was negligent in "maintaining . . . a dangerous nuisance by allowing its trolley rails to protrude," etc., and since the words "maintaining a nuisance" involve the idea of continuity and some degree of permanence (Ford v. GrandUnion Co., 240 N.Y. App. Div. 294), it might be said that the original statements were not demurrable but merely subject to a rule for a more specific pleading.
Defendant urges that plaintiffs were guilty of contributory negligence as a matter of law. In our opinion, however, this question was for the jury. It cannot be said that in attempting to bring his car out of the track space Culver, had he looked, must have seen the depression in the bricks immediately adjacent to the rail. The right wheels had never been within the track, and the passage of the left wheels across the rail had to be at an oblique angle. Considering that the turn to the right in front of the Ford car necessarily absorbed his attention, *510 it cannot be asserted with finality that he was careless in not observing the defect or, observing it, in not realizing the inability of the wheel to clear it with safety.
The issues as to negligence and contributory negligence being, therefore, for the jury, defendant's motions for judgment n. o. v. were properly overruled.
Several reasons were advanced by defendant in support of its rules for a new trial.
It contended that the two suits should not have been tried together; but this was a matter for the discretion of the trial judge: Azinger v. Pennsylvania R. R. Co.,
When the jury returned its verdict, the judge who had presided at the trial was absent, and the verdict was received by President Judge IOBST. Defendant complains that this violated its constitutional right to trial by jury "as heretofore," and places reliance upon the case ofCommonwealth v. Claney,
The learned trial judge instructed the jury that, if their verdict be for plaintiffs, they should make a special finding stating "exactly what you find the negligence to be." When the jury rendered its verdict it made no such finding and Judge IOBST refused a request that it be insisted upon. Defendant claims that this was error. The so-called special finding, however, as framed by the trial judge, was not really a special finding at all; there was only one possible basis of liability submitted to the jury, and therefore no need of their stating of what they found the negligence to consist. Even, however, if it be regarded as a special finding, the jury could not have *511
been compelled to return it: Chambers v. Davis, 3 Whart. 40, 47; Patterson v. Kountz,
Turning now to plaintiffs' appeal from the granting of a new trial, we are not unmindful of the well established rule that such an order is not reviewable unless the court below makes it clearly appear that the reasons particularly set forth in its opinion are the only ones which moved it to award the new trial: Regan v. Davis,
As far as excessiveness of the verdicts is concerned, it would serve no useful purpose to discuss that question at this time. Assuming that the court below is justified in believing that the verdicts were excessive, three methods of procedure are pointed out in Thirkell v. Equitable Gas Company,
The order of the court discharging defendant's motions for judgment n. o. v. is affirmed; the order making defendant's rules for a new trial absolute is reversed, and the record is remitted to the court below with instructions to determine as to each of the plaintiffs the amount of the remittitur which in its opinion should be filed by them as the alternative to the granting of a new trial.