384 Pa. 390 | Pa. | 1956
Opinion by
This action in trespass was instituted in August, 1949 by the plaintiffs, Clara Stevens and Mike Stevens, her husband, against Reading Street Railway Company to recover damages for personal injuries sustained by Clara Stevens when alighting from the defendant company’s bus. The Railway Company joined the City of Reading as an additional defendant alleging that the City was solely or jointly liable to the plaintiffs. The City of Reading answered and then moved for judgment on the pleadings averring that the plaintiffs had not complied with the Act of July 1,1937, P. L. 2547, 53 PS §2774, requiring the plaintiffs to give written notice to the City of their claim within six months from the date of its origin. This motion was denied by the court below in an opinion holding that the City was properly joined as an additional defendant for the purpose of conveniently determining in one suit the right of the Railway Company, if found liable for plaintiffs’ damages, to obtain contribution from the City as a joint tortfeasor, but that the City could not be held solely liable for plaintiff’s injuries.
Since this is an appeal from the entry of judgment n.o.v., we will consider the testimony together with all reasonable inferences therefrom in the light most favorable to the plaintiffs: Stewart v. Pittsburgh Railways Company, 379 Pa. 260, 108 A. 2d 767. Accordingly, the facts may be stated as follows: On the morning of December 11, 1948, a clear, dry day, the plaintiffs were passengers for hire on a bus owned and operated by the defendant, Reading Street Railway Company, a common carrier. The bus was traveling in a southerly direction on North Fifth Street, approaching the intersection of Fifth and Washington Streets in the City of Reading, where the plaintiffs and other passengers intended to alight. The bus regularly stopped on the west cartway of Fifth Street flush with the west curb and with the front of the bus about even with the north line of the north crosswalk over Fifth Street. On the day of the accident, however, defendant’s bus stopped a considerable distance north of its regular stopping place, at an angle, with its front end approximately one and one-half feet away from the west curb and the rear end five or six feet from the curb.
The wife-plaintiff was approximately in the middle of' a line of fifteen or sixteen persons who got off the
The hole had existed continuously for a period of approximately six weeks prior to the accident. After the wife-plaintiff fell, and while being assisted to her feet, the operator of defendant’s bus said to her: “I am sorry, it is my fault, I stopped at the wrong place.” The bus operator had driven a bus over the same route for four consecutive months prior to the accident, five days a week.
North Fifth Street at the time and place of the accident was designated as a State highway under Section 2 of the Act of June 22, 1931, P. L. 720, 36 PS §103.
The first question to be decided is whether plaintiffs’ evidence was sufficient to enable the jury to find negligence on the part of the defendant Railway Company. The law is clear that a common carrier for hire owes a duty to its passengers not only to exercise the highest degree of care and diligence in carrying them to their destination, but also must exercise reasonable diligence to give passengers a safe place to alight and pass out of
It is undisputed that the regular stop for the bus on the day of the accident was on the west cartway of Fifth Street, flush with the west curb and with the front of the bus about even with the north line of the north crosswalk over Fifth Street; nor is there any evidence that this was not a perfectly safe place for the defendant’s bus to have stopped. Instead of stopping at the regular bus stop, however, defendant’s bus stopped a considerable distance north of its regular stopping place, and in such a manner that the hole in question extended underneath and directly beside the exit door from which Mrs. Stevens alighted.
In Gourlay et ux. v. Phila. R. T. Co., 100 Pa. Superior Ct. 419, plaintiff stepped from defendant’s street car, which had not stopped at the regular stopping place, into a hole in the street which she had not seen, although she used reasonable care in alighting. It was there held that the question of defendant’s negligence was for the jury even in the absence of evidence as to how long the hole in the street had been there or that the defendant’s employes knew of its being there. In Gerlach et ux. v. City of Philadelphia et al., 103 Pa. Superior Ct. 401, 157 A. 212, plaintiff stepped from defendant’s street car into a trench which she did not see and which was known to exist by those in charge of the car. There was a safe place to discharge passengers a short distance from the place where the car stopped. The question of the transit company’s negligence was held to be a matter for the jury. In Brown v. Beaver Valley Motor Coach Company et al., supra, in holding that the matter of defendant bus company’s negligence
In McCollum v. Pittsburgh Railways Company (No. 1), 51 Pa. Superior Ct. 637, a case frequently cited by this Court, where plaintiff alighted from defendant’s car at a place which was not a regular stopping place and which was in close proximity to a pile of stones onto which passengers would naturally step in getting off the car, it was held that the jury might well find a case of negligence, since defendant’s employes had seen the stone pile and plaintiff had not.
The cases relied on by the defendant Reading Street Railway Company are distinguishable on their facts. In Carroll v. Pittsburgh, 368 Pa. 436, 84 A. 2d 505, the plaintiff stepped from defendant Pittsburgh Railways Company’s trolley car which was stopped at the regular stopping place, into a hole which she described as being about three inches deep and larger than a dinner plate. This Court held that the question of negligence on the part of the defendant railway company was not for the jury, stating at p. 444 that “. . . it would be unjust and impracticable to hold street railway companies liable to passengers alighting from their cars on busy city streets, where, especially in the case of asphalt pavings,
Hoffman v. Philadelphia Transportation Co., 369 Pa. 212, 85 A. 2d 144, may also be distinguished on its facts. There the defendant’s bus stopped at its regular stopping place, although some six to eight feet from the curb, and plaintiff, while alighting, stepped into a hole about two feet long, eight or ten inches wide and two to three inches deep. This Court, in sustaining the lower court’s action granting binding instructions for the defendant, pointed out that no evidence was presented by the plaintiff as to the length of time the hole existed, or that the bus operator knew of its existence. In the present case there was evidence from which the jury could find that the hole was continuously in existence for six weeks, and that the bus driver had knowledge of it.'
The present case is different from those where the passenger, after successfully stepping from the street car or bus, is then injured by stepping into a hole h> cated between the car and the curb. Such was the case in Perret et ux. v. George et al., Receivers, 286 Pa. 221, 133 A. 228. The case of Thompson v. Philadelphia et al., 129 Pa. Superior Ct. 174, 195 A. 174, is distinguish
As to the question of contributory negligence on the part of the wife-plaintiff, the defendant railway company maintains that Mrs. Stevens was negligent as a matter of law on the ground that had she waited a moment, the passengers blocking her view would have moved, and she would have then seen the hole and not fallen. We cannot nor could the court below agree with this contention which would hold the plaintiff to a higher standard of care than is ordinarily exercised by a person in alighting from a bus under similar circumstances. The wife-plaintiff was in the approximate middle of a line of passengers who were alighting from the bus. Under the conditions present, she could not be held negligent as a matter of law: Thompson v. Philadelphia et al., supra. Mulford et ux. v. Phila. Rapid Transit Co. et al., 310 Pa. 521, 165 A. 837, is inapplicable on its facts since there the plaintiff was the last passenger to alight from the trolley car and fell after taking a couple of' steps away from the car. Fordyce et ux. v. White Star Bus Lines, 304 Pa. 106, 155 A. 98, clearly is not in point since in that' case there was no evidence of any defect in the street, and plaintiff, by stepping off the bus step in the night expecting to step oh the curb, blindly trusted a dangerous situation.
Turning to the question of the liability of the defendant City of Beadihg, we aré in agreement with the majority opinion of the lower court that it is in no way
Section 1 of the Act of June 22, 1931, P. L. 720, 36 PS §102, under Section 2 of which North Fifth Street originally became a State highway, provides, inter alia, that those streets taken over by the Commonwealth are “. . . to be maintained, constructed, reconstructed and resurfaced at the expense of the Commonwealth upon the terms and conditions and subject to the limitations hereinafter provided.” Section 522 of the Act of June 1, 1945, P. L. 1242, 36 PS §670-522, known as the State Highway Law, states that “After the streets designated as State highways shall have been taken over by the Commonwealth, they shall be maintained, constructed, reconstructed and resurfaced by the department at the expense of the Commonwealth, . . . Maintenance shall not include snow removal or street cleaning, and shall be limited to the portion of the street between existing curb lines available to vehicular traffic. . .”. Section 525 of the State Highway Law provides that no opening can be made in any State highway until a permit is obtained from the highway department or from the City if the City is authorized in writing to act for the department. Section 526 states that before the commencement of any work authorized by Section 522, the City, on proper notice from the Secretary of Highways, must establish and maintain an adequate detour until the work is finished. Section 407 of the Act, 36 PS §670-407 provides: “For the purpose of uniform, efficient,
In Brunacci et al. v. Plains Township, 315 Pa. 391, 173 A. 329, plaintiff fell into an open water drain on a street which originally had been a township road, later a county road, and eventually taken over by the Commonwealth as a State highway under the Sproul Act of May 31, 1911, P. L. 468, which has since been repealed. The Sproul Act provided that the roads taken over in the State Highway System should thereafter be constructed, improved and maintained by the State Highway Department at the expense of the Commonwealth. In.affirming the lower court’s action of entering a compulsory nonsuit against the plaintiffs, we held that the township was not liable unless there was- legislation compelling repair and maintenance of the road in question, stating at p. 394: : . When the State took over the highways under the Sproul Act, it provided that they should.be. constructed,'.improved and maintained by the state highway department, at the sole .expense of the 'Commonwealth, and that they were, to be under the' exclusive jurisdiction of the state highway- depart
The case of McCracken v. Curwensville Borough, 309 Pa. 98, 163 A. 217, relied on by the appellants, is not in point since there the Commonwealth assumed only the right to improve or reconstruct the highway at the expense of the Commonwealth. We held in the Mc-Cracken case that Section 20 of the then applicable Sproul Act of 1911, providing that the Commonwealth shall keep the State highways free from ruts, holes, sticks, loose stones and the like, when considered with Section 10 thereof, applied only to State highways outside of the cities, boroughs and incorporated towns. Section 407 of the State Highway Law of 1945 and its related sections contain no such limitation.
Although not alleged in any of the plaintiffs’ pleadings, and not argued in the lower court, appellants suggest that the hole here constituted a nuisance and that the City was obligated to abate this nuisance either by repairing it or by notifying the Commonwealth of its existence. It is a sufficient answer that our cases hold that no liability can be imposed on the City unless there is legislation compelling repair and maintenance: See Brunacci et al. v. Plains Township; Heinlein, Exrx. v. Allegheny County, supra.
Appellant also argues that since under Section 521 of the State Highway Law, 36 PS §670-521, the City is obligated to “regulate traffic” and “police” a State high
It is our opinion that the Legislature has placed the sole obligation to repair the street in question upon the Commonwealth thereby relieving the City of responsibility.
The judgment is affirmed as to the defendant City of Reading; it is reversed as to the defendant Reading Street Railway Company and the record remanded for disposition of the Railway Company’s extant motion for new trial and appropriate proceedings thereafter consistent with this opinion.
Subsequent to this opinion, the lower court signed an order dated May 8, 1951 allowing the case to proceed directly against the City on the ground of direct liability to the plaintiffs. Counsel for the City objects to this order here on the ground that testimony was not taken and the requirement in the Act of 1937, supra, that a reasonable excuse for failure to give the required six months’ notice to the City must be shown, was not met. Our decision makes determination of this question unnecessary.