Auerbach v. Philadelphia Transp. Co.
| Decision Date | 24 June 1966 |
| Citation | 221 A.2d 163,421 Pa. 594 |
| Parties | Frances B. AUERBACH v. PHILADELPHIA TRANSPORTATION COMPANY, Appellant. |
| Court | Pennsylvania Supreme Court |
Harry A. Takiff and Takiff & Bolger, Philadelphia, for appellant.
B. Nathaniel Richter, Kenneth Syken, John J. McCarty, Richter, Lord & Cavanaugh, Philadelphia, for appellee.
Before MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Mrs. Frances B. Auerbach, 53 years of age, was gravely injured and permanently crippled on August 30, 1962, when a bus of the defendant Philadelphia Transportation Company passed over her body, resulting in an amputation of her right leg. She brought suit against the transportation company, the jury returning a verdict in the sum of $237,500. The defendant seeks a new trial, alleging trial errors.
Mrs. Auerbach testified that while she was walking southwardly on 18th Street, headed for her home, and had reached a point about one foot away from the north curb line of Walnut Street and while still on the sidewalk, a bus of the defendant company climbed the curb and brushed against her. She attempted to step back, but as she was doing this, the driver directed the forward part of his huge vehicle toward his left, causing the rear part of the bus to mount the sidewalk, striking her and knocking her to the ground. She was dragged into the street and the bus, passing over her, inflicted horrible and mangling mutilations, unnecessary, fortunately, to describe here.
If the accident happened in this manner, the negligence of the defendant company, through its driver, was established absolutely. A pedestrian on a sidewalk is entitled to sanctuary from vehicles on the street as surely as one praying on his knees in a cathedral.
The defendant company disputed that the accident happened in the manner described by the plaintiff. The bus driver testified that as he was about to cross 18th Street, having proceeded normally in a westward direction on Walnut Street, the plaintiff stepped out into Walnut Street and then drew back. The driver could not say just how his vehicle finally came into contact with the body of the plaintiff. In view of the fact that the defendant now urges that the lady who stepped in front of the bus might not have been the plaintiff, as will be noted later, it may be in order to quote the driver's testimony in this regard:
The driver admitted that after passing the woman he exclaimed 'My God,' slammed on his brakes and looked into the rear mirror:
'Q. Why did you look in your right rear mirror?
A. I wanted to make sure that the lady that I saw jump back up off--out of the street was O.K.
* * * Q. You looked in your rear mirror because you thought maybe you hit her, is that it?
A. I wanted to re-assure myself, sir.
Q. As to whether you had hit her is that right? A. Yes, sir.'
When questioned by the Accident Investigation Police, the driver said: 'I thought it was a close one.'
The case was ably tried by both counsel, advocates of considerable experience, the Trial Judge presided with competence, patience, forbearance and firmness, and the jury returned a verdict which, from all appearances, was a just and proper one, entirely supported by the evidence. A new trial, with all its attendant anxieties, time, and expense involved should be avoided unless, of course, there were such errors in the first trial as makes a retrial imperative under trial rules now well established in Pennsylvania jurisprudence.
Defendant's counsel avers that there were such errors and has filed a formidable brief in support of his contentions. We will consider them seriatum.
The defendant asserts that the Trial Court submitted to the jury alternative and conflicting theories as to the happening of the accident, neither alleged nor proved. We have seen that there were two main conflicting accounts as to how the accident happened, the plaintiff maintaining that the bus usurped the sidewalk occupied by the plaintiff, the defendant asserting that the plaintiff entered into the street occupied by the bus. The defendant, however, did not limit its defense to the lady-in-the-street assertion. It advanced additional various theories as to how the distressing circumstances reached tragic climax. Among them is the proposition that the lady ran into the bus, that possibly she had an epileptic seizure and fell under the bus, that the bus hewed to a straight line on Walnut Street and therefore the doleful event could not have developed as narrated by the plaintiff. The defendant not only advanced these arguments in academic refutation of the plaintiff's case, but produced evidence in support of these propositions.
In these circumstances, the Trial Judge was compelled to instruct the jury on the varying factual assertions. Indeed, it would have committed error had it not lifted a lantern of enlightment in the area where the defendant cast so many shadows discrediting to the plaintiff's case. For instance, the defendant claims that it was error for the court to charge on certain provisions of the Motor Vehicle Code. It asserts that since the plaintiff stated she was on the sidewalk and did not descend into the street, there was no need for the Court to charge on the matter of traffic lights. But the defendant claimed that the plaintiff stepped off the curb into the street when the traffic light was red against her and green for the bus. The Court could not avoid charging on responsibilities weighing on motorists and pedestrians where traffic lights are involved in the litigation. Then the defendant complains because the Court said that proceeding ahead (for motorist or pedestrian) in the face of a non-green light, constituted negligence, urging that such a violation could not be regarded as negligence unless it was the proximate cause of the accident. But the Court charged very clearly on proximate cause:
The defendant urges the strange proposition that the lady who stepped into the path of the bus may not have been the lady whom the driver saw in the street after the collision. Of course, this does fall within the realm of possibilities but since the bus driver, in his main testimony, specifically made the two ladies one and the same person, even though he may have altered that view later (although not necessarily so), the Court was compelled to give the jury instruction on applicable provisions of the Motor Vehicle Code, appertaining to vehicles and pedestrians on the highway.
Throughout the entire sweep of the defendant's argument runs the constant current of criticism that the Trial Court confused the jury by charging on matters not alleged or proved. It levels attack on the Court's affirmance of the plaintiff's Point No. 9:
'I charge you that under the evidence if you find that defendant's bus swerved and either mounted the sidewalk or came so close to the sidewalk as to strike plaintiff and her injuries resulted thereby, then if you so find you may find such conduct on the part of the bus driver to be negligence and you may further find that it was negligence not foreseeable by the plaintiff, located as she was and that this negligence rendered unsafe the bus that was otherwise safe and lawful for the plaintiff, that then the plaintiff would not be guilty of contributory negligence.'
The defendant maintains the Court here introduced a new and unpleaded theory of liability because the plaintiff's whole case was predicated on the proposition that the bus invaded the sidewalk. Standing alone this is a plausible argument, but considered in connection with all of the testimony in the case it loses conviction. The plaintiff testified that as the bus approached 18th Street 'I heard the wheels scraping and squealing along the curb.' Since the plaintiff was only one foot away from the curb, it would not take much of an overhang or swerving to draw her into the fatal orbit of the lumbering 40-foot-long gargantuan vehicle.
It will be recalled that the defendant's driver admitted he had told the policeman that the accident was 'a close one.' He admitted also that he did not use the white guidelines on Walnut Street or the curblines for estimating the closeness of his right side to the curb on Walnut Street. Two witnesses for the defendant, who testified that the bus had proceeded in a straight line, stated on cross examination that they heard a thud in the vicinity of the right rear wheel and that the thud was substantial. One of the passengers testified that the bus came close to the curb and that the driver increased his speed as he approached the spot occupied by the plaintiff. It is not enough for an automobile, truck, bus, or any other vehicle to stay within the space allotted to it in the highway. It must not drive so close to the sidewalk that any projection from it invades the refuge of pedestrians.
The...
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