365 Pa. 609 | Pa. | 1950
Opinion by
This action of trespass was brought against the West Penn Railways Company, defendant, by Prank Magerko, as guardian of his minor son, and by Prank Magerko and Helen D. Magerko, his wife, as parents in their own right, to recover damages for injuries sustained by the minor plaintiff and loss sustained by them. The minor was twenty-one months old at the time of the accident when he was run over by a street car of defendant, August 4, 1945, and suffered the loss of his right foot. The jury found a verdict for plaintiffs in the amount of $24,00.0; divided $14,000 for the minor and $10,000 for the parents. It made a special finding that defendant’s motorman was guilty only of negligence and not of reckless misconduct. Motions for judgment n.o.v. and new trial were denied, the latter conditioned upon the parents filing a remittitur of that part of their verdict in excess of $6,000. The remittitur having been filed, judgments were entered on the verdicts and this appeal followed.
No extended argument is necessary to show that on these facts the question of defendant’s negligence was properly left to the jury. The motorman could not devote his full attention to the operation of the street car, as he should have, while he was wrapping coins. Furthermore, in spite of the fact that he was concerned over the nearness of the boys to the track and their obvious alarm, he made no effort to reduce his speed or ascertain the reason for their excitement. Under those circumstances the jury was justified in finding the motorman guilty of negligence.
In 1905, the land in question, was owned in fee by Neff and in that year he recorded a plan showing Mill Street as being fifty feet wide. At that time Mill Street was only fifteen feet wide and it is conceded by defendant that the recording of the plan was- an offer by Neff to dedicate the additional thirty-five feet to public use. Nevertheless defendant asserts that the deed from Neff to defendant acted as a revocation of the offer to dedicate the land. This argument is refuted by reference to the deed itself. That deed provided that the right of way “. . . shall be confined to the western side of said Mill Street . . . And provided further, that said right of way shall not include or cover any portion of the land heretofore conveyed by the said parties of the first part to Daniel J. Johnson west of said Mill Street.” Since the Johnson land was bounded by the western edge of Mill Street as laid out on the plan, it is quite clear that the parties contemplated that the tracks would be laid in the newly dedicated portion of Mill Street which lay west of the original fifteen-feet wide road. There being nothing in the deed to indicate an intention to destroy the right of the public to use the full fifty-feet width of Mill Street, that intention cannot be presumed. The extent of a grant to construct and operate a railroad in a street is limited to what is expressly granted; nothing in derogation of public user will be implied: DiBlasi v. Pa. R. R. Co., 361 Pa. 181, 185, 63 A. 2d 70. Therefore, the right of way remained subject to use by the public. That being true, minor
In support of its motion for a new trial, defendant urges that the verdict of $14,000 in favor of the minor plaintiff and the verdict, as remitted, of $6,000 for the parents are both excessive. The right of plaintiffs to" recover is fully justified both in fact and in law. However, we are satisfied the learned court below did not sufficiently reduce the verdict of the parents; that $6,000 is excessive, and that $4,000 would be much nearer what is reasonable and proper under the circumstances, it being obvious that a strong sympathy moved the jury. The verdict of $14,000 for the minor plaintiff, not reduced by the court below, is also excessive and must be reduced to $12,000, which more nearly represents the true loss.
The judgment in favor of the minor plaintiff (No. 120 March Term, 1950) as reduced to the sum of $12,000, and the judgment in favor of parent plaintiffs (No. 121 March Term. 1950) as reduced to $4,000 are affirmed.