Carroll v. City of Pittsburgh

• Citation: 84 A.2d 505,368 Pa. 436
• Parties: CARROLL et al. v. CITY OF PITTSBURGH et al.
• Decision Date: 15 November 1951
• Court: Pennsylvania Supreme Court

84 A.2d 505

368 Pa. 436

CARROLL et al. v. CITY OF PITTSBURGH et al.

Supreme Court of Pennsylvania.

November 15, 1951

Action by Marie P. Carroll and Joseph A. Carroll, her husband against the City of Pittsburgh, a municipal corporation, and the Pittsburgh Railways Company, to recover damages sustained by the first named plaintiff when she fell into a hole in a street after alighting from a streetcar. The Court of Common Pleas of Allegheny County at No. 3476, April Term, 1948, M A. Musmanno, J., entered an order granting plaintiffs' motion for a new trial and the defendants appealed. The Supreme Court, No. 172 and 173, March Term, 1951, Horace Stern, J., held that where the evidence as to negligence of streetcar company was insufficient for the jury and the evidence sustained finding of jury in favor of municipality the trial court abused its discretion in granting a new trial to the plaintiff as to both defendants.

Order reversed with directions.

Anne X. Alpern, City Sol., Thomas E. Barton, Asst. City Sol., Pittsburgh, for City of Pittsburgh.

Con F. McGregor, Pittsburgh, for Pittsburgh Railways Co.

Harry A. Estep, James T. Philpott, Pittsburgh, for appellee.

Before DREW, C. J., and STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.

HORACE STERN, Justice.

The jury in this trespass action having found a verdict for defendants, we are of opinion that the court below was not justified in granting, as it did, plaintiffs' motion for a new trial on the ground that the verdict was contrary to the evidence and that in the interest of justice a new trial should be had.

On the night of April 9, 1946 the wife-plaintiff, Marie P. Carroll was a passenger on a trolley car on Federal Street operated by defendant Pittsburgh Railways Company. Federal Street is a main, much travelled, well lighted highway in the City of Pittsburgh. At Montgomery Avenue there was a regular carstop 10 feet back of the intersection and another one 45 feet to the rear, so that the cars customarily stopped within that 55 feet distance, as did the car in the present instance on which Mrs. Carroll was a passenger. She testified that she alighted from one of the front doors and in so doing her right foot became caught in a hole in the asphalt of the cartway,-a hole which she described as being larger than a dinner plate, irregular in shape, and of a depth of about three inches; she said she had so much difficulty in extricating her foot that she required the assistance for that purpose of the streetcar operator and her daughter who was a passenger with her on the car and alighted immediately behind her. She was not certain, in her testimony, whether her foot went directly into the hole as she stepped from the car or whether she had first taken another step. She claimed that she suffered injuries as the result of the accident and she and her husband brought suit against both the Pittsburgh Railways Company and the City of Pittsburgh to recover damages. She was corroborated in her testimony by her daughter. On the other hand, the motorman testified that several persons stepped from the car immediately before Mrs. Carroll and some after her; when she had taken about two steps from the car, she went down on her right knee; he left the car to help her but she had meantime gotten to her feet; he asked her if she was hurt and she told him she had turned her ankle, was not injured and did not wish to go the hospital; she walked to the sidewalk with her daughter and went down Federal Street. He further testified that at the place where she fell there was nothing but a small frost crack in the asphalt paving about an inch wide and a half inch deep and running diagnoally toward the curb for a distance of about four or five feet. A registered nurse employed by the Allegheny General Hospital who was sitting in the car directly behind the motorman and facing the point where Mrs. Carroll was alighting testified that she saw her fall after taking one or two steps, but she rose directly, said she was all right and walked away. Plaintiffs produced witnesses who testified that for some time previous to the accident there had been several holes in the street at that point, including one of them as described by Mrs. Carroll.

We consider first the liability of the Pittsburgh Railways Company. It appears that there were Belgian blocks bordering the outside of the rails of the Federal Street tracks; from there to the sidewalks the street was paved with asphalt. In their complaint plaintiffs alleged that the Railways Company was negligent in failing to maintain the street at the point of the accident in a reasonably safe condition and in permitting the hold to be and remained within its right of way. But, concededly, the Railways Company was obliged to keep only the portion of the highway in repair that was within the rails and for a distance outside them of 18 inches. Mrs. Carroll did not testify, nor did the evidence otherwise show, that the hole into which she stepped-which was in the asphalt paving and not in the Belgian blocks-was within that 18 inch distance; even had she stepped directly down from the car step into the hole it would not apparently have brought the point of the accident within the area of the Railways Company's responsibility taking into consideration the overhang of the car over the rails; moreover, as already stated, Mrs. Carroll admitted that she may have taken a forward step after alighting. Having failed affirmatively to prove, as it was her burden to do, that the hole existed in the portion of the highway for the repair of which the Railways Company was responsible, she failed to make out a cause of action against the Railways Company on that count, as the learned trial judge properly indicated in his charge to the jury.

Plaintiffs' other charge of negligence on the part of the Railways Company was based on their allegation that the motorman stopped the car and allowed Mrs. Carroll to alight at a point where he knew or should have known of the existence of the hole. It is true that there are authorities to the effect that where a passenger is mistakenly led to alight at an extremely dangerous place which is not the usual stopping place the carrier may be held liable for any injuries which the passenger thereby sustains.^[1] But in the present instance the car stopped at a regular stopping place at the intersection of two city streets, one of which was a principal highway where presumably large numbers of passengers were continually boarding and alighting from the cars and where there were no unusual barricades, trenches, mounds of earth or extraordinarily hazardous conditions such as featured the cases referred to. It has been said that ‘ a street railway company cannot be held to as strict accountability in furnishing a place for a passenger to alight as a railroad company. The former must discharge its passengers in the public highway and at places over which it does not have exclusive control, and hence its liability is different from that of a railroad company, which has the exclusive control over its stational facilities.'^[2]In Perret v. George, 286 Pa. 221, 223, 224, 133 A. 228, 229, it was said by Mr. Justice (later Chief Justice) Kephart in a passage frequently quoted in later cases: ‘ The hole into which appellant stepped was in the public highway, a thoroughfare over which defendant had no control, was not in any way responsible for, and had no authority to repair, if needed. However broadly and strictly we may have held street railways to care in receiving and discharging passengers, where the company owns or controls the right of way, with the approaches thereto, the rule is different where such right of way and approaches are not so owned. In the latter case there is a permissive use of the street in common with others, without any control of it. The public officers were in authority, and the municipality is responsible for the street's condition, if an injury results therefrom. * * * It is only in exceptional cases, arising under contract, that a street railway company is responsible for accidents occurring in the cartway of a street through lack of repair.

‘ Street car companies are not required to observe the condition of streets over which their cars travel, so as to stop their cars with exactness at places where passengers may avoid ordinary defects in the highway while alighting. To require otherwise would be to exact of such carriers a degree of care not consistent with efficient public service, and would impose an obligation impossible of performance, considering the condition of some of the highways of to-day. * * * To hold, under such circumstances, that the duty of stopping at a safe place to alight embraced the obligation to avoid any defect in the highway, between the car and the curb, would cause the company to be liable as an insurer of the safety of a pedestrian in coming from or going to a car. If there was responsibility for the accident, it was the municipality's, not appellee's.’ It was accordingly held in that case that the plaintiff, who was injured when alighting from the streetcar by stepping into a hole in the street which she was prevented from seeing because of people in front of her, was not entitled to recover from the street railway company.

In Scherer v. Philadelphia Rapid Transit Co., 295 Pa. 199, 145 A. 76, a passenger was held not entitled to recover from the trolley company where she was led to alight at a point where there was an excavation in the course of repair of the track and the earth beneath the paving gave way as she stepped upon it.

In Martin v. Steen, 109 Pa.Super. 263, 167 A. 609 plaintiff fell into a hole or ditch in the...