Conway v. Pottsville Union Traction Co.
| Decision Date | 27 March 1916 |
| Docket Number | 447 |
| Citation | 253 Pa. 211,97 A. 1058 |
| Parties | Conway, Appellant, v. Pottsville Union Traction Company |
| Court | Pennsylvania Supreme Court |
Argued February 14, 1916
Appeal, No. 447, Jan. T., 1915, by plaintiff, from judgment of C.P. Schuylkill Co., May T., 1907, No. 402, for defendant non obstante veredicto in case of Annie E. Conway v Pottsville Union Traction Company. Affirmed.
Trespass to recover damages for death of plaintiff's husband. Before BECHTEL, P.J.
The opinion of the Supreme Court states the case.
Verdict for plaintiff for $10,000. The court subsequently entered judgment for defendant n.o.v. Plaintiff appealed.
Error assigned was the entry of judgment for defendant n.o.v.
The judgment is affirmed.
James B. Reilly, with him M. M. Burke, for appellant.
Otto E Farquhar, with him C. E. Berger, for appellee. -- Joint wrong-doers may be sued separately; and the plaintiff may prosecute the same until the amount of the damages is ascertained by verdict, but the injured party can only have one satisfaction: Heydon's Case, 11 Coke Rep. 5; White v. Philbrick, 5 Me. 147; Knickerbacker v. Colver, 8 Cowen (N.Y.) 111; O'Shea v. Kirker, 4 Bosw. 120 (17 N.Y. Super. 120).
Before BROWN, C.J., MESTREZAT, POTTER, FRAZER and WALLING, JJ.
This action is to recover damages for the death of plaintiff's husband, and the facts are as follows: Defendant owns and operates an electric railway which connects the Boroughs of Pottsville and Tamaqua in Schuylkill County, and passes through the Boroughs of Port Carbon and Palo Alto. In the latter borough its railway crosses the tracks of the Philadelphia & Reading Railway Co. on a bridge which is conceded to be a public highway of the municipality. Defendant, in contemplation of making certain improvements and betterments to its system, procured the consent, by ordinance duly adopted, of the Borough of Palo Alto, to replace the old bridge over which its line extended with a new steel and iron structure, and for the purpose of carrying out its proposed improvements entered into a contract with the Eastern Penna. Railways Co., which latter company subsequently contracted with J.G. White Co., Inc., to do the work, and that company in turn let the contract to the S.M. Bowles Co. The latter company proceeded to carry out its contract and during the progress of the work of reconstruction a portion of the planking between the railway tracks on the bridge in Palo Alto was removed and the space permitted to remain open and insufficiently guarded for a considerable time. The verdict, which was in plaintiff's favor, establishes that her husband about 3 a.m. of April 17, 1907, in attempting to cross the bridge, fell through the practically unguarded open space receiving injuries which resulted in his death. Separate suits were begun by plaintiff against each of the four companies named above, the only proceeding, however, prosecuted is the present action. Previous to the trial plaintiff executed a release to the Bowles Co., which recited the receipt of the sum of $1,000, "in full satisfaction and payment of such sum or sums of money payable and belonging to me by any means whatsoever, for or on account of the death of my husband." Defendant contends this receipt and release operated as full satisfaction of plaintiff's claim for damages for the death of her husband, and was, therefore, a complete defense in the present action.
The trial judge submitted to the jury the various facts in dispute, including the questions of negligence and contributory negligence, reserving the question of law as to the effect of the release. He also left to the jury the question whether defendant retained and exercised the right of supervision and control of the premises during the progress of the construction of the new bridge, charging that, if defendant turned the work over to the contractor and exercised no control, the verdict should be for defendant. The jury found for plaintiff, and the court subsequently entered judgment for defendant non obstante veredicto. The single question, therefore, for consideration is, whether under the circumstances the release given by plaintiff to the contractor operated as a satisfaction for the injury and a discharge of defendant from liability.
The agreement between defendant and the Eastern Penna. Railways Co. was not obtainable at the time of the trial, consequently no copy of it appears in the record, and we are, therefore without means of knowing the precise conditions under which the work of reconstruction was let by defendant. In the contract between the Eastern Penna. Railways Co. and the J.G. White Co., Inc., the latter is paid for its services by stated commissions on the total cost of the work completed from time to time, and it is expressly provided that all employees shall be considered the employees of the railways company, and subject to its direction. The contract between J.G. White Co., Inc., and the Bowles Co. contains a clause...
To continue reading
Request your trial