Clark v. Philadelphia Rapid Transit Co.
| Decision Date | 27 June 1913 |
| Docket Number | 357 |
| Citation | 241 Pa. 437,88 A. 683 |
| Parties | Clark, Appellant, v. Philadelphia Rapid Transit Co |
| Court | Pennsylvania Supreme Court |
Argued April 2, 1913
Appeal, No. 357, Jan. T., 1912, by plaintiff, from judgment of C.P. No. 4, Philadelphia Co., Dec. T., 1908, No. 1045, for defendant non obstante veredicto, in case of Annie Clark, who sues for herself as well as for her minor children, Thomas J Clark and James Clark, v. Philadelphia Rapid Transit Company. Affirmed.
Trespass to recover damages for the death of plaintiff's husband. Before CARR, J.
The opinion of the Supreme Court states the facts.
The jury found a verdict for plaintiff for $9,750. The court subsequently entered judgment for defendant non obstante veredicto.
Error assigned, among others, was in entering judgment for defendant non obstante verdicto.
The assignments of error are overruled, and the judgment is affirmed.
Victor Frey, with him Augustus T. Ashton and Warren C. Graham, for appellant.
Sydney Young, for appellee.
Before FELL, C.J., POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.
This is an appeal from a judgment entered for the defendant by the court below non obstante veredicto. We have carefully considered the argument of counsel for appellant, and in the light of the theories advanced, have examined the evidence to ascertain if the action of the court was warranted. It does not appear that the testimony offered in behalf of the plaintiff in this case, as disclosed by the record, shows any adequate moving cause for the disturbance of the apparatus which by its fall brought about the lamentable accident which occurred. It does appear that James Clark who was employed as conductor of a freight car of the defendant company, pulled a trolley pole and part of its attachments, from the top of the car down upon himself, inflicting fatal injuries. But in what way the pole became loosened from its base, or unseated from the spindle upon which it rested so as to permit of its falling or being pulled from the car, was not in any reasonable way explained by witnesses for the plaintiff. As indicated by counsel for appellant, in his accurate description of it, the apparatus may be regarded as made up of two parts: one a cylindrical plate bolted rigidly to the roof of the car, in the center of which plate an up-right spindle about eight inches in height rises; the other part of the appliance consists of a long pole which reaches to the overhead wire, this pole being socketed at the bottom at one side of a hollow cylindrical metal sleeve; on the opposite side of the sleeve are fixed a group of eight springs, which are also fastened to this pole and create a strong tension for the purpose of keeping the pole in contact with the overhead trolley wire. This cylindrical sleeve is slipped over and down upon an upright spindle, and is seated snugly thereon, having sufficient play to admit of a rotary motion, as occasion for reversing the trolley pole may arise. That in the use of the car the trolley pole will be frequently drawn down and shifted or reversed, is, of course expected, and the appliance is designed for that purpose, a rope being attached to bring the pole within reach of the conductor; the tension of the springs being always against the pull of the rope, and intended to restore the pole to its effective position in contact with the overhead wire, and to keep it there. At the time of the accident, the car in question had been switched to a siding to permit a passenger car to pass. Over this siding no overhead trolley wire was stretched, so that in order to obtain current to start the car it became necessary to swing the trolley pole over to the trolley wire which was above the adjoining track. The motorman in charge of the car testified that he took the pole and placed it in contact with the live wire, and handed the rope to Mr. Clark, the conductor. The motorman then got on the front of the car and started it. When he had gone a short distance he said he heard the rattle of the pole and looked back and saw Mr. Clark lying on the street with the pole across his chest. The trolley pole had manifestly been lifted from its base up and away from the eight-inch-high spindle, and had fallen from the car. But by what power the apparatus was raised, and this heavy device lifted from its seat upon the spindle, the motorman who was testifying in behalf of the plaintiff, did not indicate. Nor was he interrogated as to this important point. He testified that shortly before the accident, at the complaint of the conductor, who said the pole worked "very stiff" he got up on the car and oiled the pole so that it would work easily. He said that at that time the pole was in every way in good condition. This motorman and the conductor, Mr. Clark who was killed, had worked on this car all of the previous day and all forenoon of the day on which the accident occurred, and during that time the trolley pole was drawn down and shifted many times. No witness for plaintiff explained the unseating of the pole from its base, nor made any suggestion as to how it was raised upon and over the spindle, without which it could not have been separated from the car. One witness, Rickaby, testified that he saw the conductor pull twice on the rope, and then the whole thing came down and struck him in the forehead. He said the car was moving at the time. Another witness, Julia Finegan, said she did not notice how many times the conductor pulled at the rope, but when the car started a little the pole came off and hit the man on the head. The theory advanced on behalf of plaintiff was that the conductor standing...
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