94 Pa. Super. 121 | Pa. Super. Ct. | 1928
Argued April 27, 1928. Plaintiffs, husband and wife, brought their action in the court below to recover damages from the defendant company for personal injuries suffered by each of them, and losses and expenses occasioned the husband, through the alleged negligence of defendant's servants in failing to protect plaintiffs, while passengers upon one of its trolley cars, from assaults committed upon them during the progress of a brawl for which a group of disorderly young men, also passengers on the car, were responsible. Verdicts of $500 for the husband and $2,000 for the wife were returned. Defendant's motions for judgment n.o.v. and for a new trial having been overruled, judgments were entered upon the respective verdicts, from which we have these appeals by the defendant. There are but two assignments of error and under them no question is raised with respect to the right of the plaintiffs to recover compensatory damages under the facts developed in the testimony. The single question involved under the assignments is whether the trial judge was justified under all the circumstances of the case in charging the jury that it "might allow punitive damages." The proper disposition of this question necessarily involves a detailed consideration of the facts appearing from the evidence, for the conduct of those *124 in charge of this car, and particularly of its conductor, must be judged in the light of those facts.
Upon examining the record we find irreconcilable conflicts in the testimony, but for the purposes of this review we must resolve these conflicts in favor of the plaintiffs. By so doing we find the facts and inferences fairly deducible therefrom to be these: The plaintiffs, accompanied by the husband's brother, Maurice Gerlach, and the wife's stepfather and her mother, Mr. and Mrs. Coulter, boarded one of defendant's trolley cars about 11:45 P.M. on July 7, 1924, at the corner of Liberty Avenue and Stanwix Street in the City of Pittsburgh to go to their home at Ingram some miles out of the city. The car was of the center entrance type with the station of the conductor at the fare box in the center of the car and facing the entrance door. Immediately to the rear of the entrance doors there were a number of cross seats, each accommodating two passengers. Plaintiffs seated themselves in the first of these cross seats on the right side of the car and within a few feet of the conductor. Maurice Gerlach took the cross seat directly opposite and Mr. and Mrs. Coulter the one behind him. The seat immediately behind the plaintiffs was vacant. Shortly after the plaintiffs and their relatives entered the car and before it left its starting point four young men, whose ages ranged from eighteen to twenty-five years, and who were at least partially intoxicated, entered the car, seated themselves in the rear some distance behind plaintiffs, and began to make boisterous, profane and bantering remarks to each other. Elizabeth Gerlach was sitting next to the window and by reason of a severe headache had removed her hat and was resting her head against the side of the window. Her husband was reading a newspaper. In addition to those already mentioned there were but one or two other passengers.
With respect to the events which occurred within *125 the view and hearing of the conductor shortly after the car started, Maurice Gerlach testified that the young rowdies were bantering one another as to who would go up and pull Mrs. Gerlach's hair and continued: "A. Then one fellow said — he took the banter for to pull my brother's wife's hair. Q. Where did he come to? A. He came to the second seat, in back of my brother, the first seat back of my brother....... He kind of kicked the seat with his foot and he reached up and caught her by the hair and gave a yank. And I noticed it because I was watching that way, and I noticed him when he came up from the rear. Q. What did you do? A. I just waited a second and then he pulled it again, and then I looked over to him, `Now, here, cut that out. I saw you do that.'" After testifying to an obscene reply the witness proceeded: "Q. In what sort of a tone did he say that? A. Loud enough for everybody to hear it. Q. Did the conductor say anything or do anything? A. The conductor didn't say anything. Q. Did he come back there? A. No; he didn't move from his stand. Q. Was that language used loud enough for the conductor to hear? A. Absolutely. Q. Did you say anything to the conductor? A. I said to the conductor, `Why not put that man back where he came from, in the back of the car?' and he never paid any attention. He didn't say anything. Q. Which way was the conductor looking? Back towards you? A. Looking right to the front of the door, the opening of the door. Q. Didn't he even look back in the direction? A. No, he didn't pay any attention at all. Q. Well, what happened next following the time you told him to stop pulling her hair? A. Well, then, my brother got up from his seat and told him to go back again, and he wouldn't do it, and he struck at my brother, and my brother got hold of him and pushed him back about a seat or so from where he was sitting. Q. And was there any conversation or talk from your *126 brother to him or from him to your brother? A. He said, `It is a — lie.' My brother asked him about pulling her hair and he said, `It is a — lie.' He didn't pull it, and all this and that, and my brother said, `You go back where you came from.' Q. When your brother pushed him back a seat or two, what happened after that; did he go back, or come up again? A. No, he went to the back of the car there and sat there." There was testimony that after this incident the man who had been pushed to the back of the car pointed at Maurice Gerlach and said, "I will get you when you get off."
When the car reached Corliss Station, about twenty minutes after it had left the city, the conductor opened the doors and the young men started to leave the car. As they passed along the aisle two of them assaulted the Gerlach brothers. Malcolm M. Gerlach's description of the assault, as contained in his testimony, was: "A. Well, about that time we landed at Corliss Station. The car stopped; evidently the boys lived there somewhere for four of them got up to get off, and as two of them passed, one grabbed me by the throat....... Q. Where were you when he grabbed you? A. In the seat. Q. The same seat? A. Yes; and the other boy, he struck my brother. Q. Do you know which one struck your brother? A. No. Q. Then what followed?...... A. Well, there was a fight ensued or a scuffle started in the car, and of course, I had to defend myself, and my wife jumped up to grab me and hold me from fighting, and she kept saying all the way out, `Don't fight, and don't get in no trouble.' And, of course, when these boys was hitting at me, the one that made the attack on me, he was pushing and shoving and the first thing I knew we were out in the street. Q. Did the conductor take any part in that? A. No, sir; he opened the doors to let us out and when we got on the street the fight *127 continued out there until I noticed my wife had been knocked unconscious. Q. You were engaged in a scuffle and fight. How about Maurice, was he in it? A. Yes, he was in it. Q. How many of these young men took part in that? A. Four of them, I believe. Q. How long were you scuffling inside of that car before you got out of the door? A. Well, it was some time, I should say three or four minutes. Q. Do you know how your wife got knocked out of the car or got knocked unconscious? A. I don't know, no. Q. Where was she when she was lying there? A. She was lying on the street next to the curbstone. Q. How far from the car? A. I should say a distance of four or five feet. It is a very narrow street there." The other plaintiff, Elizabeth Gerlach, after corroborating the testimony relative to the pulling of her hair and the assaults upon her husband and his brother, said: "A. As he started to strike at Maurice, Malcolm went to get up and I asked him to stay in his seat, maybe they would get off, not to have any trouble with them. And he got up to defend himself and there was quite a scuffle there. Q. Did you get up? A. I did; yes, sir. Q. What did you do? A. I tried to get out of the seat I was in. Q. Well, did anything happen to you? A. I was pushed back into the seat, back against the window. Q. Who pushed you? A. I don't know. Q. Very hard? A. Quite hard; yes, sir. Q. Did you make an effort to get out? A. I made an effort to get out again and I was pushed against the pole on the corner of the front seat. Q. Against what? A. The pole that runs in front of the front seat, right at the edge. Q. You mean at the entrance? A. Yes, sir. Q. An iron pole? A. Yes, sir; a small pole. Q. Who pushed you against that? A. I don't know. The men that was scuffling....... I was really crushed against it and I couldn't get away. Q. How many of these men, including your *128 husband and Maurice, were engaged in that scuffle. A. There were two of them fighting with Maurice and Malcolm Gerlach and two right beside them, attempting to get into it....... Q. How long did that scuffling keep up in the car that you know of? A. I would say five or six minutes. Q. And what happened to you after you were crushed against the pole? A. I don't know much after that; I was knocked off the car. Q. Who knocked you off the car? A. I don't know. Q. Some of the men that were scuffling? A. Yes, sir. Q. When you were knocked off the car where did they knock you to? Did you strike anything? A. Yes, sir; I struck a pole. Q. What kind of a pole was that? A. It is an iron pole, about that big around (indicating). Q. How big through would it be? A. Oh, five inches....... I just hit it hard and I don't know any more."
The husband's thumb was injured to an extent that interfered with his earnings as a professional musician for several weeks and the wife received serious injuries which confined her to bed and resulted in a miscarriage a few days after the assault. The measure of defendant's duty to plaintiffs as orderly passengers upon one of its cars is clearly defined in our decided cases. In Pittsburgh and Connellsville Railroad Co. v. Pillow,
The jurors were not bound to accept this explanation of the conductor's neglect to protect his passengers from the assaults and of his supine and apparently cowardly failure to assist them when attacked. In the language of the opinion in Barlick v. Balt. Ohio R.R. Co., supra, the prior conduct of these offending parties had been such as to indicate a disposition to indulge in physically violent conduct and to give rise to a reasonable apprehension of injury to other parties. There are a number of circumstances which *132 exclude this case from the limitation of the rule announced in Hillebrecht v. Pittsburgh Railways Co., supra. It does not follow however that this is a case in which the trial judge was warranted in instructing the jury that it might award punitive damages. This question seems to have been injected into the case by plaintiffs' counsel at the close of the regular charge and in response to the inquiry of the trial judge whether there had been any omissions to which counsel desired to direct the attention of the court. Counsel for plaintiffs then asked, "Does the court wish to charge on the matter of punitive damages?" to which the trial judge replied, "Well, the question of punitive damages has been raised in this case, and punitive damages are allowed not only by way of compensation, but by way of punishment to deter the defendant and others from offending in like cases. If you feel in this case that the defendant is guilty, you might allow punitive damages." Apparently being apprehensive that this instruction was inadequate, counsel for plaintiffs said, "With reference to the point I mentioned as to punitive damages: I would like to ask the Court to say that if the jury believes from the testimony that the defendant's servants and operators of this car so negligently performed their duty as to indicate a wanton disregard of the rights of these plaintiffs, then the jury may allow punitive damages and are not restricted to compensation only," to which the court replied, "I would say to you, as a matter of law, if you find this street car was operated by the defendant's conductor in such a way as to amount to wantonness on his part, and that the injuries thereby resulted and were cause by this wantonness, that then the company would be responsible for punitive damages as well as compensatory damages." These instructions are assigned for error and the question raised by them is not primarily whether the instructions were adequate but rather whether there was *133 any evidence justifying the submission of the question.
In its consideration several important distinctions and principles must be kept in mind. We are here dealing with a case between a carrier and its passengers and with a case where the ground for recovery pleaded in the statement and proved at the trial was the failure of a servant to act when he should have acted and not a willful or malicious act by the servant to the injury of the passengers. It is not suggested that the conductor participated in the assaults, nor is it averred in the statement of claim that his conduct was willful or malicious. All that is there charged is mere negligence in failing to protect his passengers by remonstrating with the disorderly persons or ejecting them from the car. Nor is there any suggestion that the inaction of its servants was authorized or approved by the defendant company. As was said by our Supreme Court in Funk v. Kerbaugh,
In Pittsburgh and Connellsville Railroad Company v. Pillow, supra, and in Pittsburgh, Ft. Wayne and *135
Chicago Railway Co. v. Hinds,
Considering the serious nature of the injuries suffered *136
by the wife, we have no way of ascertaining definitely how much of her verdict of $2,000 was intended as compensation and what part, if any, as punishment for the defendant. If it were clear here, as it was in Hoffman v. Berwind-White Coal Mining Company,
The judgments are reversed with a venire.