405 Pa. 532 | Pa. | 1962
Lead Opinion
On December 2, 1959, at about 6:20 a.m., Mrs. Irene Cuneo, 65 years of age, descended from a streetcar of the Philadelphia Transportation Company at what is known as the “trolley loop” located at Richmond and Huntingdon Streets in Philadelphia. With a transfer in her hand she proceeded to cross two tracks at that point in order to reach another streetcar which was to take her to her place of employment. As she stepped in front of the car which was halted in front of the one from which she had disembarked, the latter car moved forward and struck her, inflicting serious injuries. In her ensuing suit against the Philadelphia Transportation Company the jury returned a verdict in her favor in the sum of $41,000. The defendant moved for judgment n.o.v. and a new trial. Both motions were refused by the court below and this appeal followed.
It is the contention of the defendant company that the plaintiff failed to prove negligence on the part of the company and that the plaintiff was herself guilty of contributory negligence. Neither contention is supported by the record. The locus in quo was a trolley loop made up of three tracks, which we will designate as tracks. Nos. 1, 2 and 3. Mrs. Cuneo came into the loop, on track No. 1 aboard a streetcar entitled Route Nó. 15. She was here required, as already stated, to
The defendant argues that the plaintiff had “two perfectly safe ways to cross the track, one behind thé leading car and the other far enough in front of it to be visible to the motorman before she stepped on the track or reached a position of danger.”
The first “perfectly safe way” the defendant recommends might well be termed an invitation to suicide. To pass between two standing cars with the possibility that the leading car might back up or the second car might move forward, with an inevitable crushing of the passenger in between, would hardly be a method approved by any safety committee for crossing tracks.
The second “perfectly safe way” required the plaintiff to move a greater distance down the platform before crossing over so that, the defendant argues, she would be more visible to the motorman. But if the motorman did not see Mrs. Cuneo when she was within his immediate vision in front of his car, what assurance would there be that he would see her if she was farther away?
The plaintiff testified that she had taken one step into the track when she was hit. The motorman knew that passengers had disembarked from the car behind him; he knew that they crossed at the point where he had stopped. (The plaintiff testified she had been, crossing here for eleven years.) The motorman’s responsibilities demanded that he be extremely alert be-, fore starting up his car. The evidence shows, and the verdict confirms that he was not alert. He did not ring his bell, he gave no other sign of warning before throwing on his power and plowing ahead.
The defendant argues, however, that the plaintiff should not have crossed at this point at all. Orange and yellow lines five or six feet apart crossed No. 1 track. The leading car was stopped behind these lines. The appellant maintains that the painted lines indicated the point at which the cars were to stop and not where the passengers were to cross. If this point was not an established place for crossing, where were the passengers to cross? The passengers had to get from track No. 1 to track No. 3 some way. If the traction company didn’t lay down the pedestrian route across the tracks, the necessities of the situation demanded that the passengers find their own way. What is dictated by necessity is as authoritative in the routine of life as what is laid down by formal regulation and proclamation. The motorman involved in this case testified that it was customary for passengers to cross at the point used by Mrs. Cuneo.
We are satisfied that the jury was warranted in finding that the defendant company was negligent. It owed to Mrs. Cuneo the same degree of care imposed on it by law toward passengers actually aboard its cars. That care it did not discharge. “ ‘The weight of authority is to the effect, when a passenger who is making a continuous journey alights from a streetcar for the purpose of making a transfer, the relation of the carrier and passenger continues while he is in the necessary act of making the transfer and the carrier owes to him the same high degree of care which it owes to passengers on board its cars.’ ” (Damm v. East Penn Transportation Co., 120 Pa. Superior Ct. 381.)
“[A] carrier’s duty to a passenger is the exercise of the highest care as long as the relationship subsists, from the time the person becomes a passenger until his status as such ceases and he has completed his journey and left the carrier’s premises.” (10 Am. Jur., Carriers, §1249).
It is also clear that the jury was justified in its conclusion that the plaintiff was not guilty of contributory negligence.
At the time of the accident the plaintiff was 65 years of age. The appellant’s argument for a neAV trial on the basis of an excessive verdict is predicated mostly on this fact. It points out that Mrs. Cuneo is eligible for social security payments and thus could not
It is a mistaken assumption that because one is eligible to social security benefits at 65, this age represents the end of the line for productive work on the part of the average person. Longevity is not so rare in modern life that it must be dismissed as bizarre. The advances made in medical science, the widely publicized rules of health and better living have all contributed to a constantly increasing life span which one has the right to enjoy free of pain and suffering caused by tortious happenings. Therefore, it is error to say that at 65 one can no longer work remuneratively and therefore must be cast on the economic ash heap.
There is no reason dogmatically to assume that, given reasonable health, one cannot for some years continue as efficiently after the 65th milestone has been reached as for the few years which preceded that heretofore awesome marker. The ripened experience, the matured intellect, the self-control, the storehouse of knowledge gathered through the years all so contribute to the efficiency of the human mechanism that it may continue to produce after 65 years with an effectiveness that no employer or society at large should want unthinkingly to discard.
Judge Waters of the Court of Common Pleas of Philadelphia County has excellently summed up why the Court below did not believe the verdict of $41,000 to be excessive and we adopt that part of his opinion as reason for affirming the court’s refusal of a new trial in this feature of the case. “The defendant’s final contention is that the verdict was excessive. The plaintiff was hospitalized for ninety days. She sustained a comminuted fracture of the right femur intertrochanteric, which ultimately resulted in a one-inch shortening of the right leg. X-ray measurements
“At the time of the accident, the plaintiff was employed as a machine operator in the tag division of Keyburn Manufacturing Company at a weekly wage of $58.95. For 1957 her total earnings Avere $2,708.33, for 1958 they were $2,938.31 and for 1959, up to the date of the accident, she earned $3,023.29. The plaintiff has not Avorlsed since the accident and her physician testified that she is unable to do any work that requires Avalking or standing.
“The hospital and doctor bills in this case amounted to $3,253.10; the lost wages to the date of trial approximated $3,800 or a total of $7,000 in special damages. The jury had the further duty of evaluating the impairment of plaintiff’s earning capacity during a possible life-expectancy of fourteen years. How long she would have continued.to Avorlc was for the jury to decide. The defendant’s suggestion that plaintiff’s employer went out of business in December 1960, and that she would probably not have gotten other employment at the age of 66 years is quite inappropriate; it improperly extracts an inference in defendant’s favor and
“The jury also had the duty to consider and evaluate the pain, inconvenience and suffering which plaintiff had to the time of trial and for the balance of her lifetime. The plaintiff, because of the non-union of her fractures, also requires future treatment, hospitalization and reconstructive surgery. The plaintiff’s counsel in his brief asked . . how much for being changed from a useful, working and productive member of society into a semi-invalid. . . ?’ That question was for the jury and we certainly were not shocked at its verdict. The verdict was fair and just compensation.”
Judgment affirmed.
Dissenting Opinion
Dissenting Opinion by
The jury’s verdict in awarding, and the Opinion of this Court in sustaining damages of $41,000 to a 65 year old woman based to a large degree on a work expectancy of 14 more years, is so unfair and unrealistic as to necessitate a substantial reduction. I would grant a new trial limited to the question of damages.