58 Pa. Super. 371 | Pa. Super. Ct. | 1914
Lead Opinion
Opinion by
It cannot be denied the statement originally filed exhibited a cause of action. What was it in essence and substance? The plaintiff averred that, oh a day and at an hour named, in the ordinary exercise of her right as a pedestrian, she undertook to cross Wylie avenue in Pittsburg at the regular Washington street crossing. While thus engaged, she was struck by the defendant’s in-bound car and that serious injury to her resulted. “That the motorman was negligent in the operation of said car, and did not use due precaution to look out for persons on the track and did not have his car, at said Washington street crossing, under proper control.” In a word, that her cause of action resulted from a negligent
When the case actually came to trial, more than two years after the occurrence, plaintiffs counsel asked and obtained leave to amend the original statement, inter alia, in two particulars, viz., (a) By striking out the averment as to the excessive rate of speed of the car before it reached the point of the collision, (b) By adding an averment that the car had reached its regular stopping place at Washington street when she undertook to. cross in front of it. Did the allowance of these
The case is not ruled by Martin v. Rys. Co., 227 Pa. 18. The reason for the conclusion there reached is thus clearly stated by Mr. Justice Elkin: “The relations and duties of the parties are entirely changed by the amended statement. In the original statement the standard of care was the duty owed by a street railway company to a person, not an intending passenger, at a street crossing. In the amended statement the relation of common carrier and passenger is set up, and the standard of care required in protecting, an intending passenger while getting on the car is relied on. The two' theories are entirely inconsistent,” etc. By the amend
Even if, under these conditions, the question before us may fairly be considered doubtful, the modern trend of judicial and legislative thought encourages that solution which will lead to a trial by jury on the merits. The plaintiff’s case has successfully passed that ordeal and she should not be denied the fruits of her verdict on any doubtful question of pleading.
The judgment for defendant non obstante veredicto is reversed and the record remitted to the court below with direction to enter judgment on the verdict for the plaintiff.
Dissenting Opinion
I respectfully dissent from the judgment of reversal and would affirm the judgment of the common pleas for the reasons set forth in the opinion of Judge Reid of that court.