Ferruzza v. Pittsburgh, Appellant.
Supreme Court of Pennsylvania
November 10, 1958
394 Pa. 70 | 145 A.2d 706
What Justice ARNOLD well said in the St. Clair case already cited may properly dispose of the case at bar: “It is the rule, rather than the exception, that in eminent domain proceedings the opinions of the experts, as well as the parties, are quite divergent on the questions of value and loss. Most of the evidence in this respect being opinion evidence, it necessarily must be left to the fact-finding body, under proper instructions, to arrive at a just conclusion of market values before and after the taking. In the instant case, the elements of damage were ably and clearly presented to the jury in the testimony, the case was free of trial error, the court‘s charge was fully instructive and complete, and the verdict should not be interfered with by the court.” (p. 407)
Judgment affirmed.
Thomas E. Barton, Assistant City Solicitor, with him John A. Robb, Assistant City Solicitor, and J. Frank McKenna, Jr., City Solicitor, for appellant.
Thomas R. Eddy, with him Schuchert & Eddy, for appellee.
OPINION BY MR. JUSTICE BELL, November 10, 1958:
Plaintiff, John Ferruzza, brought an action in trespass to recover for personal injuries sustained as a result of a collision between the beer truck in which he was riding and a fire truck owned and operated by the defendant, City of Pittsburgh. The jury returned two verdicts (see infra) in favor of plaintiff and against the City of Pittsburgh and the Red Star
We shall first consider the motion for judgment non obstante veredicto. Since the verdict of the jury resolved conflicts in the testimony in favor of plaintiff, in considering this motion, plaintiff must be given the benefit of all the evidence which is most favorable to him together with all reasonable inferences therefrom: Bream v. Berger, 388 Pa. 433, 130 A. 2d 708; Farmers’ Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A. 2d 908.
The accident occurred on October 7, 1942, at approximately 4:30 P.M. at the intersection of West North Avenue (a public street 45 feet in width) and Arch Street (which is 36 feet in width) in the City of Pittsburgh. The intersection is a fairly busy one. At the time of the accident, plaintiff was riding in the front seat of a Red Star Beverage Company delivery truck which was being driven by Paul Regatuso, a fellow employee. The Red Star truck was proceeding in a westerly direction on West North Avenue at a speed between 15 and 25 miles per hour. As the truck approached the intersection of West North Avenue and Arch Street it was in a line of traffic, there being approximately four or five vehicles immediately preceding that of the plaintiff. This traffic did not stop and proceeded through the intersection on a green light. The vehicle in which plaintiff was riding similarly proceeded into the intersection on a green light, and when it had reached approximately the middle of the intersection the rear part of the truck was struck by
As the truck in which plaintiff was riding entered the intersection, plaintiff looked to his right and saw the City‘s fire truck when it was approximately 20 or 25 feet away from the intersection. Plaintiff testified that he then yelled a warning to Regatuso. Regatuso, a witness for plaintiff, testified that although he looked in both directions as he proceeded across Arch Street, he did not see the fire truck until the collision occurred. His testimony is obviously valueless. Plaintiff testified that the beer truck on which he was riding as a helper had the windows down; that neither at the time of the accident nor for a block away, nor at any other time did he hear any siren or bell or other audible sound. Plaintiff did not see any driver or fireman or any other man on the open fire truck, and if there had been a siren blowing or a bell ringing he testified that he could have heard it.
Plaintiff‘s testimony as to the siren or bell was contradicted by his witness Didio and by the driver and fireman of the fire truck and by three disinterested witnesses who rang or heard the siren or the bell.
The jury retired at 2 P.M. and at 3:40 P.M. they indicated that they had reached a verdict. Juror No. 1 stated that they found both defendants negligent and had decided to give the plaintiff “$15,000 plus medical expense, hospital expense (which together totaled, $874.25) [and] all Court costs and attorney‘s fee.” The Trial Judge instructed the jury that they could not include in their verdict attorney‘s fees and Court costs. The jury thereupon retired, and five minutes later returned a verdict of $25,000 against both defendants.
At common law, the City of Pittsburgh would not be liable for this accident: Devers v. Scranton City, 308 Pa. 13, 15, 161 A. 540; Fire Ins. Patrol v. Boyd, 120 Pa. 624, 15 A. 553; Kies v. City of Erie, 135 Pa. 144, 19 A. 942. However, by the
In Mansfield v. City of Philadelphia, 352 Pa. 199, 42 A. 2d 549, the Court said (pages 200-201, 202-203): “The law of this case is clear. A vehicle of a fire department is exempt,* when responding to an alarm, from the restrictions of the Motor Vehicle Code of May 1, 1929, P. L. 905, regarding speed (section 1002(f)), right of way (section 1014(b)), traffic signals (section 1026(d)), and entrance upon through highways and stop intersections (section 1016(d)). But these exemptions are conditioned upon the vehicle being operated ‘with due regard for the safety of all persons using the highway‘, and they do not protect the driver ‘from the consequences of a reckless disregard of the safety of others,’** or ‘from the consequence of an arbitrary exercise of [the] right of way.’ The municipality is jointly and severally liable with the operator for damages caused by his negligence (Act of June 29, 1937, P. L. 2329, section 619), provided such negligence is of a reckless nature: Reilly v. Philadelphia, 328 Pa. 563, 569, 195 A. 897, 900; Williams v. Pittsburgh, 349 Pa. 430, 432, 37 A. 2d 540, 541. . . . While, as previously stated, a fire vehicle is not ordinarily limited as
Was the City‘s driver guilty of negligence of a reckless nature? This depends upon whether the fire truck sounded its siren or rang its bell. This in turn depends—all parties agree—upon whether plaintiff‘s testimony that he did not hear a siren or bell was, under the circumstances here involved, sufficiently positive in form and substance to take the case to the jury.
The question of whether a statement of a witness, to wit, that he did not hear a sound or that no bell was rung, was negative or positive testimony and was or was not sufficient to take the case to the jury, in the face of strong positive affirmative testimony that a bell was rung, has vexed and perplexed the Courts. The earlier cases held that a statement by a witness that he did not hear any sound or warning was negative and insufficient to prove negligence, if there was affirmative testimony that a bell was rung or an audible sound given: Ealy v. New York Central R. R. Co., 333 Pa. 471, 5 A. 2d 110; Reilly v. Philadelphia, 328 Pa. 563, 195 A. 897; Miller v. Pennsylvania R. R. Co., 299 Pa. 63, 149 A. 85. This was subsequently modified (expressly or by implication) and the statement that he did not hear a bell rung or that it was not rung was interpreted to have the same meaning and amount to positive testimony—positive in character and substance—if the witness was in a position to hear and was consciously listening for a sound or warning: Williams v. Pittsburgh, 349 Pa. 430, 37 A. 2d 540. Cf.
In Kindt v. Reading Co., 352 Pa. 419, supra, where two witnesses testified that no train whistle was blown, the Court held that under the situation of the parties and the circumstances of that case, such testimony was positive in both form and substance, and sufficient to take the case to the jury. The Court said (page 424): “It is impossible to lay down any rule by which it can infallibly be determined that a witness’ statement that ‘no whistle was blown and no bell was rung’ is of so positive a character as to support a charge of negligence, or is of such negative character as to ‘amount only to a scintilla‘. The question whether such testimony is ‘positive’ or ‘negative’ is, except in clear cases, for the jury, for the weight to be accorded to such testimony must depend on the keenness of the witness’ perceptions and the circumstances under which they functioned.”
Applying the aforesaid test to the facts and conditions in the instant case, the Court* is of the opinion that the testimony of the plaintiff, although contradicted as above mentioned, was sufficient to take the
New Trial
The City contends that a new trial should be granted for four reasons: (1) The testimony of John Douglas was inadmissible; (2) the verdict was against the weight of the evidence; (3) the verdict was excessive; (4) the verdict was so capricious and unjustifiable that it was a manifest abuse of discretion not to grant a new trial.
Felix Didio, a disinterested witness called on behalf of the plaintiff, testified that he was sitting on the steps of his home, which was a little more than a block from the scene of the accident. He saw the fire truck go down Arch Street and followed it to the corner where the accident occurred. He stated that the bell was ringing but that no siren was blowing. Didio testified that the fire truck was traveling at a rate of 35 to 40 miles an hour.
The evidence produced by the City of Pittsburgh with respect to the happening of the accident conflicted in almost all material respects with that produced by the plaintiff. Charles Lapp and W. A. Pearson, driver and fireman of the fire truck respectively, testified, inter alia, that two sirens and a bell were sounding from the time they left the firehouse until the time of the accident. Both testified that all other traffic on West North Avenue except the Red Star truck had stopped as they approached the intersection. Lapp testified that he was going 25 to 30 miles per hour.
The City also produced two disinterested witnesses. The first, Robert Duffy, testified that he was a block and a half north of West North Avenue on Arch Street, helping a friend repair an automobile, when the fire
The City also produced George J. Butler who was an employee of the City of Pittsburgh. Butler was sitting on a bench on Arch Street about a block and a half south of the intersection at which the accident occurred. He testified that when the fire alarm was sounded he saw the fire truck coming down Arch Street with the siren blowing. Although he did not notice the condition of the traffic light at the time of the accident, he stated that all other traffic on West North Avenue had stopped before the collision.
Plaintiff suffered a mild concussion, a fracture of the right tibia, a lacerated right eyelid, an abrasion of the face and a laceration of the right hand, and was hospitalized as a result of the accident for approximately five weeks. His medical and hospital expenses totaled $874.25. He suffered a loss of 50 to 75% motion in the right ankle. His wages before the accident were $25 a week; after the accident his wages were $30 a week.
It is clear that the verdict against the City was against the overwhelming weight of the evidence.
The testimony of John Douglas, who is an expert in fire equipment and in road testing the brakes on
With respect to the City‘s other contentions, it is clear that the first verdict which was returned by the jury, viz., “$15,000 plus medical expense, hospital expense [and] all Court costs and attorney‘s fee“, was undoubtedly intended to be compensation for all elements of damage—including pain and suffering, loss of wages, and impairment of earning power—except medical and hospital expenses (which together totaled only $874.25) and all Court costs and attorneys’ fees. This could not possibly be sustained as the trial Judge told the jury, since neither attorneys’ fees nor Court costs were recoverable. The jury‘s verdict, five minutes later, of $25,000 was a patent method of adding attorneys’ fees and Court costs by indirection and was obviously capricious, excessive and unjustifiable.
Assuming, arguendo, that a verdict in the sum of $15,874.25 would have been fair,—if such a verdict had been rendered—the present verdict of $25,000 (1) was clearly capricious, and (2) was clearly against the great weight of the evidence, and for each of these reasons cannot possibly be sustained.
The language of Chief Justice STERN in Costack v. Pennsylvania R. R. Co., 376 Pa., supra (where he granted a new trial), is particularly pertinent (page 350): “. . . The verdict, therefore, was clearly against the weight of the evidence and the judicial remedy in such event is the granting of a new trial: MacDonald, Admrx. v. Pennsylvania R. R. Co., 348 Pa. 558, 567, 36 A. 2d 492, 497; Kindt v. Reading Company, 352 Pa. 419, 429, 43 A. 2d 145, 150. Moreover, it was especially important under the circumstances for the trial judge to charge the jury that, while the number of witnesses on either side was not controlling, it was a weighty factor which, together with the question of the interest or disinterestedness of the respective witnesses, should be given by them proper consideration: Patterson v. Pittsburgh Rwys. Co., 322 Pa. 125, 185 A. 283. The court should also have explained to the jury the relative value, from a qualitative standpoint, of the kind of ‘negative’ testimony given by Kunkel and the ‘positive’ or affirmative testimony of the defendant‘s witnesses as to the ringing of the bell and sounding
The action of the lower Court in dismissing the motion for a new trial made by the City of Pittsburgh constituted a manifest abuse of discretion and requires us to reverse the judgment and grant the City a new trial.
The Red Star Beverage Company is also entitled to a new trial even though it took no appeal: Bergen v. Lit Brothers, 354 Pa. 535, 47 A. 2d 671. In Bergen v. Lit Brothers, a verdict was rendered in favor of plaintiff in the sum of $250 against defendant Smith, $250 against defendant Bauer, and $2500 against defendant Lit Brothers. Lit Brothers moved for a new trial, not only as against Lit Brothers, but also, on its own motion, as against the individual defendants, at the same time striking off the judgments which had been entered against them. This Court, in sustaining the lower Court, said (pages 537-538): “. . . It certainly had the power—indeed, ‘feeling’ as it did, the duty—of awarding a new trial to Lit Brothers; apparently this is not seriously questioned. What appellants deny is its right to grant similar relief to the individual defendants in view of the fact that they had not asked for it. But the right of a court to order a new trial of its own motion is indisputable.* Gallagher v. Blankenburg, 248 Pa. 394, 400, 94 A. 132, 134; Commonwealth v. Jones, 303 Pa. 551, 554, 154 A. 480, 481, 482; Brown v. George, 344 Pa. 399, 401, 25 A. 2d 691,
The judgment in favor of plaintiff against City of Pittsburgh is reversed and a new trial is granted.
The judgment in favor of plaintiff against Red Star Beverage Company is reversed and a new trial is granted, limited however to the amount of damages to which plaintiff is entitled.
DISSENTING OPINION BY MR. JUSTICE MUSMANNO:
The differentiation between so-called “positive testimony” and “negative testimony” is one of the most shadowy, meaningless, abstruse, illogical, incongruous, unscientific, and bizarre distinctions known to law. And if this Court will only cease talking about it, the Bar will understand that the distinction has gone the way of many of the barnacles which have either fallen off or been scraped off the hull of the ship of American jurisprudence. The Majority Opinion says in the case at bar: “The question of whether a statement of a witness, to wit, that he did not hear a sound or that no bell was rung, was negative or positive testimony and was or was not sufficient to take the case to the jury, in the face of strong positive affirmative testimony that a bell was rung, has vexed and perplexed the Courts.”
If a witness is asked whether he heard the whistle of a locomotive, and he answers no, assuming he was in a position to hear the whistle if blown, it is almost fanciful to say that his testimony is negative. The Majority quotes at length from the Majority Opinion in Costack v. Pennsylvania R. R. Co., 376 Pa. 341, in which this Court attempted to classify the confusion, the vexations, and the perplexities arising from the “positive” and “negative” “rule.” So far as achieving any definitive principle of law from an analysis of the cases on this subject, one might as well devote his time and energies to classifying the dead leaves as they fall from the trees in the autumn, the ripples of water as they drop over a series of rapids and cascades, or the flakes of snow in an Alpine avalanche. In my dissenting opinion in the Costack case, I said: “The Majority Opinion asserts that there are two classes of cases on the subject under discussion. The time has come to have only one—the right one. It does not comport with sound judgment, and much less with justice, to say that an injured person may or may not recover
In the case at bar the plaintiff, John Ferruzza, was injured when a truck in which he was riding (owned by Cirlingione, trading as Red Star Beverage Company), was struck by a fire truck belonging to the City of Pittsburgh. The accident occurred on October 7, 1942, at the intersection of West North Avenue and Arch Street in Pittsburgh. The Red Star truck was already in the intersection proceeding forward on a green light when the fire truck collided with vehicle‘s cab in which the plaintiff was sitting. The jury returned a verdict for the plaintiff in the sum of $25,000 against the City of Pittsburgh and the Red Star Beverage Company, which had been brought in as an additional defendant.
The City of Pittsburgh appealed, seeking judgment n.o.v. or a new trial. This Court has refused judgment n.o.v. but has ordered a new trial. The Majority Opinion says: “Was the City‘s driver guilty of negligence of a reckless nature? This depends upon whether the fire truck sounded its siren or rang its bell. This in turn depends—all parties agree—upon whether plaintiff‘s testimony that he did not hear a siren or bell was, under the circumstances here involved, sufficiently positive in form and substance to take the case to the jury.”
It is difficult to see how the plaintiff‘s testimony could be more positive on this point: “Q. And did you hear any siren or bell as you approached this intersection? A. I didn‘t sir. Q. And did you hear any bell or siren when you were a block from the intersection? A. No, sir. Q. Did you hear any sound, siren or bell, at any time before this accident? A. No, sir. Q. Did
What more could Ferruzza say to show that no audible warning signal was given by the fire truck? Moreover, he testified that if a siren had been blowing or a bell had been ringing just before the accident, he would have heard the warning.
This Court says that the plaintiff‘s evidence was sufficient to take the case to the jury but that the jury‘s verdict was against the weight of the evidence. The plaintiff‘s testimony was supported by the testimony of the driver of the truck, Regatuso, and by a disinterested witness, Felix A. Didio, who testified that he heard a bell ringing but that no siren was blowing. The plaintiff also produced an expert witness on fire equipment (John Douglas) who testified that he examined the fire truck a “few days” after the accident and that “there was positively no siren on the truck when I inspected it.”
The Majority Opinion says that Douglas‘s testimony was inadmissible. Why? The Majority cites the case of Nestor v. George, 354 Pa. 19, as authority, but the facts in that case were wholly different. There the defendant railway company offered to show that a fare rope was in the same condition five days prior to an accident that it was at the time of the accident. This Court held the offer inadmissible because there was no evidence that the condition of the rope continued until the date of the accident. Here, we are speaking not about the condition of a device (the fire siren) but about its very existence, and not before the accident but after the accident. The Majority quotes Henry on Trial Evidence: “Whenever the condition of a particular place or thing at a certain time is in question, evidence of its condition at a prior or subsequent
The Majority says: “The evidence produced by the City of Pittsburgh with respect to the happening of the accident conflicted in almost all material respects with that produced by the plaintiff.” This is not unusual. It is conflict in testimony which makes a trial, and it is the province of the jury to decide which side of the conflict predominates in convincing qualities.
Moreover, this Court has said more times than there are leaves on the largest tree in Fairmount Park in the summertime that it will not reverse a lower Court‘s discretion in the matter of awarding or refusing a new trial where only credibility of witnesses is involved, because the Trial Court is in a better position than an appellate court to pass upon credibility. I do not see anything in the record which justifies this Court in reversing that position in the case at bar.
In sending the case back for retrial the Majority uses the Costack case as an illustration of how the lower court should instruct the jury on the subject of “negative” and “positive” testimony, namely: “The court should also have explained to the jury the relative value, from a qualitative standpoint, of the kind
It would appear that, in spite of all the vexations and perplexities which this kind of a useless and confusing differentiation has caused in the past, this Court is determined to invite more vexations and perplexities. I wish to completely disassociate myself from so illogical a procedure, and so indicate by this dissent.
I might also add that sending cases back for retrials, when there is really no question of law involved, and the jury has already passed on the facts, does not help to reduce the backlog of untried cases in Pittsburgh.