*1 enjoin appealed condemnation. be to, could uot overpowering illus- quite suggest if an awesome, Or to operating eminent authority, under if an also tration, Independence Valley Forge or condemned domain, equitable Square, unthinkable that it would be appealed strike to, of a chancellor could not sword ir- threat to an ineffable and down replaceable vandalistic Liberty. shrine of application
Principles equity do not await pre- subject magnitude Any can matter. one who prima irreparable harm has sent facie case equity. right to be heard development through
Equity, innu- historical assigned pronouncements, merable court has been specialist supply a role of available to which is remedy all others fail or fall when short what required right from to save a constitutional extinc- wiped any tion. That role cannot be out in instance legislature language sunlight unless the as clear as unequivocal multiplication and as table de- so language, ap- yet clares. That as I view it, has peared; accordingly
I dissent. Mr. Justice Roberts concurs dissenting opinion. Transportation Philadelphia Company,
Evans Appellant.
Argued J.,O. 1964. Before November Bell, Rob- O’Brien Eagen, Jones, Cohen, Musmanno, *3 JJ. erts,
Philip McKinley, him J. with William Price, Jr., George ap- Price & Miller, Dechert, and for Rhoads, J. pellant.
¡3. him Abraham Freedman, Gerald with E. Litvin, appellee. Borowshy Lorry, Freedman, July Mr. Justice 1965: 20, Opinion Eagen, early evening July 28, In the F. J. Mc- (decedent) entered station Farlane the Second Street of the Market Street subway tbe Trans- Philadelphia portation Company After (PTC), Philadelphia. paying his decedent fare, entered upon plat- the station form provided for westbound trains.1 unex- some plained manner,2 decedent fell upon the subway tracks. At the time of the decedent was accident, lying space between the rails of the westbound track with “one leg part of a foot” on While one rail. lying that position, decedent was struck PTC by a westbound train and sustained very personal serious injuries.
Decedent instituted a trespass action in Court of Common Pleas 2No. (heard Common No. Pleas 3) of Philadelphia County against PTC. Some nine months later and prior to trial, decedent died, personal representative was substituted plaintiff as the and the record, complaint in the action was amend- ed to aver that the accident caused death. decedent’s After a trial before a court and jury, returned a verdict in favor of personal decedent’s representa- subway
1-PTC's an extension of its Frankford Elevated southerly structure. This Frankford train travels direction Bridge upon platform, from Street an elevated and when it reaches approximate Street, just location of Arch an east-west street Street, platform grade north of Market descends on a level, subway street and then the train enters the Market Street *4 there, continuing downgrade, tunnel. train The aon makes a turn right approximately ninety degrees, straightens to the of out and just proceeds slight upgrade prior entering on a Second the upon platform It westbound station. was the Street westbound that decedent had entered. of this station 2 day worked, [decedent] of the accident a “On the had had tavern, in a and not and a half was intoxicated when he en beer subway (372a). prior station His last recollection tered paying his fare to the cashier and his next recollec was accident hospital (372a). in the no he awoke There was was when tion any sympton of other intoxication when he nor alcohol of smell immediately hospital brought (113a).”: after to the the accident was p. Appellee, 2. for Brief
571 of against in the amount (appellee), PTC tive trial judgment a new n.o.v. and Motions $93,500. judgment on entered From the dismissed. were appeal taken. was verdict, judgment (a) appeal, n.o.v. PTC seeks
On this (b) trial. a new alternative, in the or, Judgment n.o.v. voluntarily place himself did not
Since the decedent
trespasser;
since
however,
not a
he
tracks,
was
presence
not
and liis
thereon
he was not invited
obligation toward
anticipated,
the extent
PTC’s
be
trespasser:
greater
Fred
if
than
he
was no
were
him
Rapid
Philadelphia
Pa.
337
136,
Transit Co.,
erick v.
obligation
(1940).
legal
to tres
The
A.
10
2d 576
passers
misconduct:
or wanton
of wilful
is the avoidance
Pennsylvania
240,
Pa.
R. R. Co.,
v.
Ge
elen
Philadelphia
(1960),
v.
and Frederick
by tbe His appellee on direct examination.3 testify version of the it contradicted since was not occurrence, or impeached by ap other the evidence, upon is binding 4 pellee.
Forsythe testified
train involved consisted
of five cars and
as it rounded
curve coming
that,
into the
a
station,
“coasting”
traveling
speed of no more than ten miles an hour. The track
area
along
station platform was well
lighted,
addition,
headlight on
train
illuminated
tracks for a distance of
feet
200
He
ahead.
specifically
stated that he did not realize that
human
there was a
being
lying
tracks until “the last moment” and
it was then too late to stop the train in
time
avoid the accident.
If his testimony were limited to
explanation,
plaintiff would have not made
out a case.
v.
See, Zawacki
Pennsylvania R. R. Co.,
374 Pa.
A.
97
2d 63
89,
(1953).
in another
However,
portion of his testimony Forsythe admitted
“an
seeing
object” lying between the rails when the train was
still 88 feet distant
and in
therefrom,
still
in
another
he stated that
stance,
he first saw
object”
“the
when
the train rounded the curve
leading
plat
station
or from a
form,
distance of 168 feet
away.
either
3
party
having
person
“The
.
motorman
. .
was neither
nor
legal
pending suit,
plaintiffs
in the
interest
and hence
no
had
right
Callary
him
if
call
on cross-examination”:
v. Baston
Co.,
176, 178,
(1898).
Transit
185 Pa.
A. 813
39
Laria,
4 Kareesky
227,
(1955);
v.
382 Pa.
573 at points were or 88 both feet, 168 feet event, strik- before safely stopped been the train could have 10 at about traveling The train was the decedent. ing it could that hour and the evidence established miles an It 24 38 feet. of to distance have been within a stopped feet to 70 on until 65 did not and continued stop so Under body. of the decedent’s passed the train had over or whether say it was for the to such facts, present. wanton misconduct was in wanton mis- that order for contends
Appellant the to to that conduct exist it was establish necessary decedent’s had actual the operator knowledge train’s for of time presence period on the tracks a sufficient him opportunity before the accident to a reasonable give evi- take means to avoid the accident, in out respect. pointed dence this As fatally lacking clear that an operator evidence is saw before, in object unusual in lying path tracks train at a time when far sufficiently away stop avoid On the accident. the basis thereof, jury would be warranted that a reasonable finding would man, operating train, have been more dili- gent trying particular ascertain the nature of the object which he knew be within the range of and the unchangeable path, failure do so, especially of the view contiguity passenger platform, for the disregard reckless safety anyone might who in our be there. would This, opinion, constitute wil- ful misconduct.
It is true that several instances this Court has wilful misconduct described as a reckless disregard after trespasser’s safety actual knowledge of his Co., Davies v. peril. See, e.g., L. & Delaware, W. R. R. A. 2d 183 Pa. (1952). However, these de have all erroneously equated cisions wilful misconduct used misconduct, with wanton the terms interchange the patent ignored ably difference. Correctly speaking, wilful misconduct that the actor de- means bring sired to about the or result followed, substantially least that he cer- was aware that it was necessarily tain to ensue. entail This, would course, prior knowledge trespasser’s peril. actual Wan- ton on the other misconduct, “means that hand, intentionally actor has done an act of an unreason- disregard able him character, a risk known to *7 so obvious that he must be taken aware to have been great probable highly and so it, as to it that make usually accompanied by would follow. It a harm consequences conscious indifference to Pros- . . .” . (2d 1955). §33 Torts ser, 151' ed. recognized
Other decisions this Court have that prior knowledge injured person’s peril actual affirmatively need not be established to constitute wan- ton misconduct. These as well as the Restate- cases, clearly ment of Torts, indicate that if the actor realizes knowledge or at least has of sufficient- cause facts to existing peril a reasonable man to realize the suf- for a period give ficient of time beforehand to him a reason- opportunity able to take means avoid the accident, guilty then recklessly he is of wanton misconduct if he disregards existing danger. Torts
Restatement, §500, defines Disre- “Reckless gard Safety”5 “intentionally if exist the actor does an or act fails to do an duty act which it is his knowing having the other to or do, reason to know facts which lead a would reasonable man to realize that only the actor’s conduct not creates an unreasonable bodily risk of harm to the other but also involves high degree probability that substantial harm will (Emphasis added.) him.” result to special section, pointed note to this out that conduct described therein is often called “wanton or wilful mis judicial opinions. conduct” in- if Comment d thereto that the conduct states high degree harm will volves a of chance that serious know has that he reason knows result, fact, range is con- are of its effect, others within clusive his recklessness. ap quoted
This section of with the Restatement is proval Pennsylvania (Co., Turek R. 369 Pa. R. (1952),6 recovery 85 A. 2d because but was denied finding there no have evidence from could engineer, been made that “defendant’s from the facts known to should have realized the imminent dan him, ger (Emphasis added.) . . . .” de This case involved a positive testimony and there was no railment, speed, equipment defective or other matters from which engineer should have been aware of the forthcom ing danger. language supra, above in Turek, is also cited approval Pennsylvania
with in Zawacki v. R. R. Co., supra, recovery wherein no was allowed because *8 permit engineer facts did not an inference that plaintiff’s must have had peril, notice of the distin guishing Peden v. Baltimore & Ohio R. R. infra, Co., factually. Pennsylvania
Bowman v. R. 299 R., Pa. 149 558, adopts (1930), theory A. 877 by negative this but also, high-speed inference. That was a case where a train collided preceding with the rear end of another train stopped along it which had the track.7 The Court held support that there nowas evidence to finding a of wan- ton misconduct because there was no evidence to show warning light along that a (designed the track to warn 6 While this case does not “trespasser”, involve a the observa tions as to wanton misconduct only are relevant because it was theory liability upon that could predicated, have been in view present plaintiff of the fact was pass” virtue of a “free liability negligence. the usual release of which contained 7 supra. 6, note See 576 functioning ahead) blockage track was
of on the had if it that, inference was time of the accident. ig- functioning, proved light then that the been showing misconduct, have been wanton nore it would track safety disregard those on for the reckless a implied been have that this would The Court ahead. knowledge though no actual there was the result stopped though had peril itself (i.e., train even collision). to avoid the it too late until was been seen determining point, wantonness The crucial then, suffi- had not the actor to be seem whether would possibility peril. warning And actual of the cient knowledge only man- one constitute thereof thus would along apprisal, other various means. with ner of Gray Pennsylvania 141 A. 293 Pa. R. R. Co., 28, Pennsylvania (1928), Pa. R. 288 R., Conn v. (1927), add to the reasonable A. further requirement interpretation of actual of the ness of this primary knowledge. whether concern was each, “per supported finding that a evidence or not the crossing” been established the rail had over missive way. Gray, supra, right was said And, road’s warning required unless it was shown “. . . no or should of the trainmen knew have known that the boys (Emphasis presence track . .” . . added.) reasonable inference is that the es Thus, permissive crossing of a is another manner tablishment operator possibility bringing home to the train’s peril (since property duty owner owes no more trespasser). gratuitous than licensee he does to a To Koontz v. see Baltimore & Ohio R. effect, the same R. (1932). *9 A. 212 163 Pa. 122, 309 Co., Baltimore & Ohio R. R. 324 Peden Pa. Co., 444, (1936), Hershey and Cover v. A. 586 188 Transit Co., (1927), A. 266 offer Pa. different man arriving allowing jury at the same result ner the physical the facts from that, find the train fact, plaintiffs’ tes- operators perils, when their did the see peril until they timony the had not had been that seen lip oft- giving to the it “too late”. While service was requisite, the knowledge rule actual was stated that to be drawn an inference Court each case allowed say that did not that see that one who looks cannot he he which must have seen. Pennsylvania, supra, it was R. Co., Geelen v. R. prior that the actual
stated under facts the case engineer knowledge on was the of the railroad necessary, the but that be inferred from such could existing circumstances. Rapid supra, Philadelphia
Frederick v. Transit Co., applicable. operator particularly In that case, plain- train and its conductor were told tiff had fallen beneath the wheels of the and, train, operator both the conductor and made thereafter, plaintiff a search to determine whether the still was finding they way, there. Not on their him, continued running plaintiff causing the train over and him seri- injuries. ous this Court There, held that it was jury employees to determine whether defendant’s put plaintiff’s peril, had been on notice of if so, they diligent enough protecting plain- whether were plaintiff tiff such after notice. As here, treat- trespasser, jury ed aas but nonetheless a verdict was reinstated favor.
Applying holdings reasoning of the fore- present going to authorities it case, clear was sufficient evidence to establish that motor- possession man put sufficient facts rea- peril man on notice of impending sonable an say was for the whether or having not, such knowledge, disregard he acted with a reckless for the anyone might safety of endangered. who judgment The motion for prop- n.o.v., therefore, was erly overruled.
578
New Trial he retrial that a require in the trial Certain errors ordered. wit- aas called motorman was noted the
As
before,
as
fully
examined
and he was
plaintiff’s case,
ness
as
not called
He was
occurrence.
to the details of the
jury
the
The court charged
for the defense.
a witness
a wit-
call him as
defendant
to
the
failure
tes-
his
inference that
to
an
permitted them draw
ness
case.
the
side of
helpful
to that
would not be
timony
Plaintiff
error.
and reversible
prejudicial
This was
pre-
manner in
defendant
control
cannot
avail-
in court and
motorman was
his case. The
sents
to
not
That
the defendant chose
for either side.
able
occurrence
him restate
circumstances
have
can-
plaintiff’s case)
done so once
(having
unfavor-
for
an inference
predicating
not be the basis
Pa.
Haas v.
377
to defendant’s case.
Kasnot,
able
See,
v.
197
A.
(1954),
Andrews,
105
2d 74
440,
Raffaele
The trial court’s
were also
clear
definitive
sufficiently
forth
setting
in this situation.
duty
defendant’s
court defined
and wanton misconduct
negligence
both
the outset
charge,
but
no instance did he state that
only
defendant would be liable
misconduct.
wanton
*11
The closest he seems to have
neutral state
come is the
is
“We have
a man
heard discussion that where
ment,
trespasser,
only duty
is
the defendant
(Emphasis
negligence.”
avoid wilful and wanton
added.)
defining
negligence”,
While thereafter
“wanton
upon
he nowhere states that it
is
criterion
liability
defendant’s
is to be tested. Furthermore,
additionally
repeated
by
issue is
confused
references
negligence
portions
the defendant’s
in later
of the
charge. Manifestly, negligence
in this
not at
is
issue
involving
duty
“trespasser”.
case,
owed to a
While
support
finding
the evidence could
mis
of wanton
actually
by
jury
conduct, the result
reached
problematical. The defendant is
his
entitled
have
liability
by proper
determined
standards as laid out
judge’s charge
jury:
the trial
to the
Yel
Kimmel v.
low Cab Co., 414
(1964),
Pa.
201 A.' 2d
559,
417
Wissinger,
Hronis v.
(1963).
412 Pa.
Judgment Concurring Opinion Dissenting Mr. Chief Bell: Justice not a plaintiff
Irrespective
whether
trespass-
was that of a
legal
status
trespasser,
(1)
only
plaintiff
status
could recover
er;
(2)
negli-
if
of wilful or wanton
guilty
defendant was
I would enter n.o.v. because judgment on the failed to actual prove knowledge evidence person of a engineer presence of defendant’s *12 consequently stop the tracks time train, did not wil defendant’s conduct amount to or constitute Lacka ful or wanton Davies v. negligence: Delaware, A. R. R. wanna and Western 370 Pa. 87 Co., 180, 184, therein; Pennsylva 2d and cases cited Zawacki v. 183, v. nia Railroad 374 Pa. 97 A. 2d Co., 63; Engle 89, 91, Pa. 77 A. 621; Pennsyl 366 2d v. Reider, 411, Geelen Railroad Pa. 161 Co., 595; vania 400 A. 2d Kasano & v. Baltimore George, infra; vich 348 Peden v. Pa., Railroad Co., Ohio 324 infra. Pa., Pennsylvania Justice the recent case of v. Geelen Eagen, road 400 Company, Pa., supra, accurately Rail defined* wanton : “. .
negligence (page 248) . wanton different from substantially simple negli misconduct but and even not gross gence negligence, only degree in kind. order to exist it must be .found that had this actual de case, knowledge engineer, for a peril sufficient length cedent’s time before him a reasonable give stop opportunity accident avoid the accident despite train and ac- and, * cases had broadly. earlier defined it Several too
581
prior
engineer
knowledge,
reck-
manifested a
lual
disregard
danger.
Kasanovich
. . .
less
of decedent’s
George,
(1943);
v.
Peden
348 Pa.
2d
199, A.
&
188 Atl.
Baltimore Ohio R. R.
If I would n.o.v. is not entered, majority Opinion with the new trial should that a granted.
Dissenting Opinion by Mr. Justice Musatanno: opinion masterpiece majority The in this case inconsistency of confusion, and bad law. It cites de- princi- cisions which it not does it follow, announces ples from cases not which are found therein, and, subject negligence involved, sends the law Pennsylvania out into a dark sea incertitude and tempestuous ambiguity, quadrant compass, without a lamp. opinion majority only misapprehends
The misapplies relevant law and established rules of evi- gives compre- but it dence, little indication of even simple hending undisputed facts case. The has ordered a new trial in a case properly duly proceeded tried and which just judgment. to a and final Bar and the Bench, public justifiably *13 heavy backlog lament the of untried Philadelphia County. cases This Court does not ameliorate situation when it throws back on to the smoldering backlog gigantic a timber which has al- ready product been hewn and fashioned into the justice. required two weeks Some will try be this judges again, lawyers compelled and case give will be time to a already all their case which has been ad- parties judicated; and all subjected concerned will 582 worry anxiety, ex- so and
to renewed tensions, —all travagantly unnecessary. undisputed R.Wm. It and uncontradicted that operator subway Forsythe, defend- train for the of a Transportation Company Philadelphia an saw ant “object” It is him. feet ahead of the tracks 168 Forsythe undisputed that and uncontradicted when “object” recognized away he 88 feet from this was being, object leg human to be the and the foot It Frank be one J. McFarlane. later ascertained Forsythe’s undisputed train that and uncontradicted running speed only miles “coasting” was per trial that and it established at the hour, stopped dis- motorman could the train within have had McFarlane to 38 and he done so tance feet, stop did not have been untouched. he However, would passed train had over until to 70 feet of the prostrate mutilating mangling body, an it to such in- that McFarlane died from the effects of extent Forsythe, juries. what With McFarlane in full view of Forsythe’s duty? Obviously reason- to use it was jury, striking un- The care avoid McFarlane. able proper judge, that instructions from the trial found der Forsythe did use care.
Why then? the new trial opinion majority says in- that the trial court’s “sufficiently were not definitive in clear and structions setting duty in forth the defendant’s situation.” spite opin- imagine, majority difficult to It is what the trial court could said, ion’s have strictures, say, instructing jury, did in addition to what in a moment. The with be seen cites as will Philadelphia Rap- approval Frederick v. decision says Company, 337 Pa. it is Transit id applicable” “particularly to the facts this case. case could well Frederick have been chart, Thus, quadrant compass for this trial —and trial regarded it. so court *14 plaintiff over rnn was Frederick case the
In the operator reason by train had of the a train when Justice Chief on the tracks. to victim was believe speaking “It is for this said: Court, Horace Stern, meaning negligence, of the law, within the wanton in- ordinary to avoid care use and reasonable fail to trespasser presence ascer- has been after his to a (Emphasis original) tained.” op- responsibility, the criterion of after
Thus, person presence of of a train some erator learns ordinary care on and reasonable is use track, injury below the trial court avoid that is what —and charged in this case.
Judge judge, further, the trial went even Ullman, practically quoted from Frederick verbatim language “It case. Here is the Frederick case: appropriate appellation necessary for is not to seek an plaintiff’s legal accidental status as the result place fall onto defendant’s track. Since he did trespasser. voluntarily, . . . himself there he not a was appearance as he was not and his But, invited, anticipated, not to be the extent of defendant’s obli- gation greater toward him no than if he were trespasser. pa- trespasser, Even a is not a however, operator put . . . riah. When the owner presence guard trespasser, latter as to the immediately acquires right proper protection What under the circumstances. constitutes sufficient trespasser’s exposure peril notice of a a situation of depends upon necessarily the facts each instance.” original) (Emphasis language by Judge is the used
Here Ullman jury: charging necessary “It is not out to seek plaintiff’s appropriate legal word some status as a being on the railroad of his track. result Since there placed to show that he no evidence himself there vol- untarily, own of his will and he was not tres- desire,
passer. go But as lie was not invited tbe P.T.C. to appearance onto tbe bis tracks, was not to *15 anticipated by tbe tbe extent of tbe de- motorxnan, obligation greater fendant’s to him no is it would than trespasser. ifbe be fact were a But even a tres- passer pariah. operator put not a . is . . When is tbe guard presence trespasser, to tbe of as tbe that tres- passer, acquires immediately in this case McFarlane, right proper protection tbe to under tbe circumstances. trespasser’s What constitutes sufficient notice of a ex- posure peril depends upon necessarily to a situation of every separate tbe facts case.” Judge How closer could come to tbe crite- Ullman majority proper rion which the admits is tbe criterion? case, Chief Justice Steen also in said tbe Frederick accepts repeated, majority it must be au- which, tbe as thority applied type in this case: cases “As to tbe of present of example, which tbe an wanton is is not negligence presence fail to to to use care discover the unanticipated trespasser, negli- of an but it wanton is gence, meaning within the of tbe to fail to use law, ordinary injury and reasonable care to avoid to a tres- passer presence (Em- after bis has been ascertained.” phasis original) Judge This is what bar: said in tbe case at Ullman applied presently to
“As tbe kind of case that we have you, before it is not—and I ‘not’— underscore the word negligence wanton to fail use due care to discover presence unanticipated trespasser, tbe an is— but it negligence I underscore it is wanton ‘is’, within meaning ordinary, tbe tbe to fail to law use reason- trespasser injury pres- able care to avoid to a after bis ence ascertained.” has been majority opinion approval
For tbe cite with cer- a castigate disapproval then tain with case a trial very judge very case, who uses tbe words of tbe approved me an appalling is to decision, demonstra- appellate absolutism. tion in the said not all. Chief Justice Steen But that is “ distinguished negligence,’as
Frederick case: ‘Wanton by realiza- ordinary negligence, a characterized from part what tortfeasor —or at least tion on the man— to a reasonable cause such a realization would by injury probability reck- of the another, consequences.” disregard, of the less nevertheless, neg- Judge “Wanton said: This is what Ullman negligence, distinguished ordinary ligence, from per- by of the realization on the characterized alleged such least cause son to be at would fault, probability of the a reasonable man realization disregard none- injury to another and a reckless consequences.” theless approve case of the Frederick
For the *16 say “particularly applicable” case our that it to is practically complain judge here and then the trial when copy language in the Frederick of the uses a carbon irresponsibility juridical that case is a demonstration glory adds no to this Court. majori- that the
It is to be noted addition, here, opinion jury ty to for itself declares that it was the say Forsythe, “acted or not the motorman, whether disregard safety anyone who with a reckless for the Judge might endangered.” although be Yet, Ullman phrase very disregard” in- in his used that “reckless majority jury, it to be struction to the still finds sufficiently “not and definitive”. clear upon Apparently striving to for some reason which opinion pin strange says majority its conclusions, Judge negligence, defined while wanton that, Ullman upon that it he “nowhere states criterion liability Why to be would defendant’s tested.” given neg Judge have a definition of wanton Ullman application ligence if he did not intend as an Judge speak in the case at bar? Ullman facts not delivering ing he entertainment, an aea instructing the demic lecture to law he was students, jury! repeat applied I he said: “As to the hind what presently you, that case we have not— it is before negligence I and underscore the word ‘not’—wanton presence un fail to use due care to discover the of an anticipated (is’, trespasser, but it I is—and underscore negligence meowing it is wanton the law within the ordinary, injury to use reasonable care to avoid fail trespasser presence has been ascertained” after (Emphasis supplied) Judge
How more “clear and Ull- definitive” could applying liability? inbe the criterion of man you apply negli- do How the criterion of wanton gence? simply though jury You inform the even that, injured person trespasser, be is a he is entitled to protected “ordinary under rea- the standard of injury.” sonable care to avoid majority
The that seems to entertain idea required negli- there is some kind of care in wanton gence cases which is different from the care to perhaps judge exercised in other that trial cases, jury must tell the “wanton the defendant must use thing. care” or some such indescribable The opinion regard enigma in this anis the event and, convey a new will trial, no information whatsoever judge charge. the trial as to how and what he is to vague import vague majority opinion seems judge to be that should tell *17 negligence, defendant not should exercise but wanton telling an instruction such would be like the master of ship indicating he is not to sail but not east whether south or he should sail west. north, Why majority the does want to be so occult when duty clear? judge, the law is so of a trial I re- jury, peat, in is to tell the a case of this kind, trespasser if the victim is he is even still entitled protected by ordinary the exercise of be and reasonable the If the on of of train. operator care the the for be shall of the verdict operator used that type care, for be If the verdict shall the defendant. he did not, of rationale plaintiff. That is the precise lan- as a up holds Frederick case the majority but fails to see its light. tern somehow but Not does Frederick say this, only §336 lan- in stronger even proclaims Restatement Torts knows “A of land who possessor guage, namely, known or from facts another is thereon trespassing or be may him is should know or believe that another thereaf- for harm is doing subject liability bodily so, failure trespasser possessor’s ter to the caused reasonable upon on his activities the land with carry supplied) care the trespasser’s safety.” (Emphasis through- care” rings “Reasonable is the bell which out in al- the law and it this rings case, negligence, care though fails hear it. Reasonable majority is the in light negli- which shines the law sky with the brilliance the aurora borealis but gence fails to see it. vibrates majority Reasonable Care with electric all the intensity through jurisprudence but the it. negligence majority fails to feel apparently In so fact, arbitrarily unconcernedly unaware is place of what is majority taking here that it startlingly “negligence declares that at issue this case, duty Trespasser’ owed to a involving ”. If negli- not the issue this lawsuit gence why doesn’t to the parties disclose the Bar in general secret as to what is closely-guarded its the legal prob- lem. spite of what the
However, majority has said and it has failed to spite of what say, negligence and is the issue else nothing case, this should to a one-month even law apparent student. v. Philadelphia Petrowski & R. Ry. Co., Pa. trespasser injured minor when he fell off *18 negligence crew. railroad car due to the of the train speaking Chief Justice for the Court, von Moschzisker, upon years . said: “When a.child of tender is observed duty charge a railroad it in is the of those see car, they that do not start the train until the infant tres- passer alighted duty has is therefrom. ... If this recovery be is not essential to that there breached, present any grossness,— element of or recklessness proof might ordinary of what under be circumstances enough.” negligence’ termed ‘mere is anticipa- Chief Justice von as if in Moschzisker, tory majority opinion’s languge refutation in of the “negligent- this said that when the railroad crew case, ly injure trespasser, acts such a manner as transgressor conduct of the ‘inten- is viewed law. as ” and can- wilful ‘wanton.’ tional’, Thus, emphasized strongly,, not be too because the required “or- seems miss the the care is distinction, dinary and reasonable but the failure to exercise care,” trespassers type of that care .where are involved, negligence,” Judge characterized “wanton all of which very made- clear to instant TJllman case. . Pennsylvania annotations .to comment a discussing §336 the PetrowsJci Restatement, n “The court said said: further terms
case, intentionally’ ‘wantonly are used the sense ‘ordinary negligence,’ and that ‘the test is neither reck- gross negligence nor but less conduct lack of un- care ” the circumstances.’ der under the of care “Lack circumstances” —that negligence -in all cases. To the criterion fail to ex- type can be of care characterized as ercise a “reck- safety” disregard for the but others, the care less. always ordinary “reasonable remains care.” What required Forsythe to do when he saw McFarlane was required He track? stand on his He off the train. scream or throw himself head, shout, expected required ex of an to do what was *19 perienced emergency and motorman: brakes use the stop bring quickly possible, all train to as his a spelled But of which out care under the circumstances. failing in this he failed to to do he showed do, and, this, of case what Chief Justice so well called Stern George, Kasanovich v. miscon 348 Pa. “wanton duct.” keeping rambling
In ma- with the looseness jority opinion, surprising it is not it failed any make reference to the Kasanovich case which, very jurisprudence is the cornerstone of on this course, subject plain- negligence.” “wanton that case the walking along tiff’s decedent was fac- streetcar track ing away oncoming from Court cars. This said contributory the decedent’s carelessness amounted to negligence as a matter of “For law: decedent to have alongside prox- walked the streetcar and in track close imity approaching with his back to and it, cars, making necessary protect without observations to clearly negligence was so himself, his happening contributed to the of the accident that the justified declaring court was it to be such as a mat- ter of law.” spite of this
However, law-de- demonstrated, contributory negligence, clared this Court held that plaintiff if could recover evidence demonstrat- motorman ed that the who ran down the decedent was guilty misconduct. of wanton Chief Justice Stern plainly: put contributory negligence “Such would guilty if the motorman was not be a bar of wanton mis- if disregard he exhibited a that is, reckless conduct, for safety observing perilous posi- after decedent’s danger realizing the involved in proceeding tion speed high giving warning without rate of his approach.”
What this all If vic- amounts to is this. simply tim of an accident puts himself a state faultily someone kill him sim- danger, may injure else or because ply he is at fault. on- operator coming dangerous make required instrumentality an effort ordinary effort (an based on reasonable and to avoid care) and if not do so, he does collision, and harm operator responsible becomes results, even damages the victim though may guilty have been of contributory negligence. negligence Thus wanton or wipes wanton misconduct out mortal- the otherwise ly disabling contributory factor (for plaintiff) negligence.
In a wanton miscon- word, negligence wanton duct cataloguing designation lawyers *20 and a description is not of a care. judges, type of Wanton misconduct is the failure of defend- simply the in spite ant to exercise of the ordinary care assumed of the inci- contributory negligence plaintiff, which, does not exist this case. evi- There is no dentally, that McFarlane con- dence whatsoever of guilty one as a matter of law. tributory negligence He was, could almost even a say conclusively, trespasser. fare as paid prospective He had his passenger on the legitimately and thus defendant’s proper- not known how he fell He It the tracks. ty. fainted and he could fell, pushed have have been could be a There could score of fell. for him ways on the himself tracks without fault his found have and once having once been there, seen part but, motorman had a duty running avoid motorman, him. over train his Judge charged. what Did Forsythe Ullman
That is himof under the required circumstances? the care use the record can doubt reading that no one he did And to the Frederick back Coming case, especially not. holds this out as a lighthouse majority of di- since operator we said there when the rection, that, is on train has reason to believe that someone “upon duty there- track there fastens defendant the exercising safety.” And that after due care for his Judge charged. what Ullman operator does not Of train where course, presence trespasser duty is his know the then (Restatement, Penn- different. comment d Torts, §336, sylvania Annotations) obviously this that is not but appear majority dis- It that cannot case. would presence tinguish ignorance of a tres- between passer presence. knowledge of his City Court Dumanski v. 348 Pa. this Erie, constantly stated the rule which the cherishes application case but has no to the facts presence trespasser’s us,namely, before that where the (the city to the of Erie is unknown landowner upon case) inflicting only duty “its was to refrain from any injury.” him or wilful wanton However, presence Court “Had added: been known to appellee City reasonably been should have known ordinary injury would and reasonable care to avoid it, required.” have been again “ordinary
Here we have the criterion of injury.” care to reasonable avoid Forsythe That is all had to reason- exercise, ordinary bring stop able and care his train to a when prostrate man on And he the railroad tracks. saw *21 judge obviously charged, jury the trial so and the so brought sup- in and it a verdict understood which is ported ap- by the evidence. And it is an of act sheer require pellate arbitrariness this case to be retried by very as laid down decisions of law, when this painstaking fidelity. followed with was Court, being today rights said about in Much of accused Extraordinary safeguards pro- cases. criminal persons being charged about thrown are tections with in- an in to avoid that order properly crime, so, the courts But person nocent should be convicted. are persons over who should show that same concern which of reckless conduct victims not crime but The bullet. just gunman’s kills as permanently second in this case makes decision of the majority Nan administra- citizen of the plaintiff. Evans, class de- is being trix of the estate of Frank J. McFarlane, to her under process the due guaranteed nied Constitu- Fourteenth Amendment of the United States tion, which a court property denied being She in to be accordance with adjudicated law had hers, law. plaintiff called
The motorman was Forsythe by the ac- to the manner regard with testify an was Forsythe employee cident occurred. defendant, Transportation Philadelphia Company, trial. court The de- during course, and, if have called as a witness Forsythe fendant could do trial It did not choose to so. The chose to do so. rule, the time-honored accordance with judge then, an had the they right to draw informed the the failure of the defendant because inference, that had he witness, as its testified call Forsythe testimony behalf his would not have company’s The company. to the declares majority helpful been Of prejudical reversible error. have been not. it was course, cites two cases support assumed majority utterly inapposite. are They Haas v. ruling.
its one cases the 440, Pa. Kasnot, cites, a Louis potential witness, Mike, presumed a situation wholly from side, different either by called did Forsythe testify where for one side. bar, at the one Superior 197 Pa. Andrews, Ct. In Raffaele the majority, defendant did not cited case other and, therefore, all, witnesses that sitúa- any put *22 wag wholly tion also us different from the one before for consideration. only opinion inapposite majority
Not does the cite arbitrary ordering cases of a but new trial, presumes also an omniscience no confirma- which finds opinion. opinion majority tion in the rest of the The says: [Forsythe] “The record shows that the witness every possible question concerning was asked the oc- except point applied currence at what he brakes stop the train.” plaintiff majority How does the know that possible “every question” exception? asked I one with questions plaintiff’s can think of a dozen which coun- sel could have but which he did not ask for asked, simple thoroughly reason that he was he aware that dealing was with a hostile witness whose answers majority ques- he could be bound. The admits that one namely, Forsythe apply tion was not when did asked, . stop the brakes to the train. There were countless Forsythe
others. Plaintiff’s counsel could have asked eyes. what was the condition of his He could have acquainted asked him how well he was with the locale where the accident occurred. He could have him asked drinking if day. he had been alcohol that He could have asked him if he had had similar accidents in the past. why He could apply have asked he didn’t brakes as soon an as he saw obstacle on the track. opinion
It is consonant with the rest of its for the arrogate supreme to itself knowledge plaintiff’s to what questions the mind of was counsel and what put Forsythe, could have been but the rec- capacity out ord does not bear this infinite for mind- reading majority. on the majority opinion cites Beers v. 395 Pa. Muth, buttressing position. assumed its That case destroys categorically majority’s position. There, plaintiff called defendant for cross-examina- driving tion him if the car and asked he was subject involved the fatal collision which *23 capable gauging com- the if he was lawsuit, parative speeds he was fast and how automobiles just traveling did The defendant the collision. before held behalf. We take the stand his own not witness fail to of the trial court that it error on the was charge jury unfavorable draw an to the that could to take the wit- from the refusal inference defendant’s “Law Court in his own defense. This said: ness stand the from as drawn is the distillation common sense experience experience And recorded of mankind. through some there is reveals that unless the centuries person contrary, the the obvious reason establish to charged explanation, offer when he is fails to an who having be- world runs risk of the with the misconduct, explanation pro- satisfactory to he has no lieve that per- many that a blameless Of we know duce. course, or an- of misbehavior of one character accused son is exists remains true that unless there but it still other, sealing lips, palpable ex- one’s the world reason finger speech pects We lifted to the accuse. when provision considering the constitutional not here are required reply question person any to to that no prosecution.” subject might him to criminal railway company’s the defendant case bar In the Forsythe questions many lawyer have asked could damaging mitigate testimony attempt he had an railway company ques- against given when he was Forsythe plaintiff’s by counsel. under stated, tioned plaintiff’s counsel, he saw a man examination away. he was 88 feet Yet did when he track on the reaching stop before train until him, indeed, not slaughtering passed with him The over effects. he had Forsythe lawyer have asked company’s could if there whether the brakes, brakes been had a failure lighting such inspected, he could whether distinguish being. could He the form a human possible humanly everything him if he did have asked striking prostrate figure tracks. avoid questions counsel defendant’s There were innumerable attempted mitigation put Forsythe could have plain- questioned by testimony given he had when tiff’s counsel. right from defend- infer
The had the he Forsythe failure to a witness that what ant’s call by plaintiff’s true, examination counsel was said against that he to offer and that had no modification plaintiff did testimony. The admits that applied point brakes not ask the witness at what he stop Why counsel defendant’s the train. didn’t the very question? pertinent, failure ask that crucial *24 question put only one defendant to that decisive enough justify application of under to the rule possible only be can consideration. The inference that that drawn from the defendant’s counsel to ask failure extremely pivotal question assumed crucial is that he undoubtedly or been knew the answer would have damaging railway company. coun- to the Defendant’s asking question any sel astute in not other question. ques- Forsythe already had when revealed, plaintiff’s negligence by ineptness, tioned counsel, of the time of Defend- and lack care at the accident. intend into did not to drive ant’s counsel further nails by asking lid of the further coffin defendant’s case Any year questions. this first law student would see strategy on the coun- fundamental defendant’s majority it. seems miss sel. The has established rules the law to circumvent But, maneuvering concealing strategy when it aims at party And one of those rules is that a truth. important put an witness on the takes stand fails being of an unfavorable inference chance drawn that failure. All against it because in this is ABC by escape jury, majority. For trial it but seems expensive long, tbe an order for base a flimsy on so new trial and feeble a foundation play in one announced reason is to this sixes by jury. trial sevens with began September trial case this 1963, 16, September
and ended on 30th. This means that ordering a new trial two more be weeks will consumed litigating controversy already litigated, it will adding backlog log gigantic mean a mammoth to the untried cases, will méan the retrial of case precise without direction be as to how the case should appeal, mean which could another retried, re- another reversal therefore and' and, another verdict, retrial, protracted prolonged, drawing legal another out of a controversy already which has been If Ham- decided. delays,” lamented over let the “law’s I should 1602, gallop him like hear on the snail’s of the law particular with asides on the case Evans Philadelphia Transportation Company! And it would engrossing also indeed to hear him comment, pentameter, iambic on self-assumed monarchical usur- pation judicial power, of unwarranted in. all so evident case.
I dissent.
Dissenting Opinion Me. Justice Cohen: *25 provides:- of Section 336 Torts Restatement, possessor, of “A land who knows that another tres- is should, passing thereon or from facts known to him may or doing know believe that another or is so, subject liability bodily to for -harm thereafter caused trespasser possessor’s by to the carry failure to upon the land his activities with reasonable care trespasser’s safety.” engineer Rail- X & Y 1. The “Illustration pile upon Company lying the track a road sees give to clothing man cause reasonable a such would being. suspect might Under a human that it contain engineer as- is not entitled circumstances the these required being but is it is not a human sume that keep it engine until he is certain under control is not such.” trespasser, §336
If to be treated as a decedent is applied quoted in- to the and the above illustration, questions: following Would stant raise the would case, position driver PTC’s a man in the of the reasonable suspected object area in the on the tracks have that the being? platform If human would was a so, driver acted? reasonable man have acted as PTC’s first could It to me a reasonable answer seems question negatively affirmatively and, second imposition and the liability I affirm the would therefore, Pennsylvania upon pointed out the PTC. As is Eldredge, Liability To §336 Tort Annotation Temple (1937), Trespassers, Q. Tort L. Modern (1941), or “wilfulness wantonness” Problems .163 possessor merely of the conduct of a a characterization trespasser presence negligent who is toward whose or he is should be aware. I not treat would decedent as a mere
Moreover, presence trespasser duty defendant has no whose require anticipate. greater It seems unrealistic to no potential passengers duty passengers in- toward platform subway into the area vited than is required individuals who come onto or toward into railway tracks uninvited and area of undesired. duty persons have a watch out for
PTC should platform danger positions in the area. fact, probably duty. acts it like instances has such most I dissent.