Durando v. Philadelphia Rapid Transit Co.

• Decision Date: 23 November 1922
• Docket Number: 86-1922
• Citation: 80 Pa.Super. 65
• Parties: Durando v. Philadelphia Rapid Transit Co., Appellant
• Court: Pennsylvania Superior Court

80 Pa.Super. 65

Durando v. Philadelphia Rapid Transit Co., Appellant

No. 86-1922

Superior Court of Pennsylvania

November 23, 1922

Argued October 10, 1922

Appeal by defendant, from judgment of C.P. No. 1, of Phila. Co Sept. T., 1920, No. 5707, on verdict for plaintiff in the case of Aldorino Durando v. Philadelphia Rapid Transit Company.

Trespass to recover damages for personal injuries. Before Patterson J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $ 1,250 and judgment thereon. Defendant appealed.

Errors assigned were refusal to give binding instructions for defendant, refusal of defendant's motion for judgment non obstante veredicto and the judgment of the court.

Joseph J. Tunney, for appellant. -- An employer cannot be held to answer in damages for a vicious personal act of one of their employees entirely outside the scope of his employment Rohrback v. P.R. Co., 244 Pa. 132; Pennsylvania Company v. Toomey, 91 Pa. 256; Allegheny Valley R Co. v. McLain, 91 Pa. 442; Greb v. Pa. R. R. R. Co., 41 Pa.Super. 61.

Edward A. Kelly, for appellee. -- The case was for the jury: Atherholt v. Erie Electric Motor Co., 27 Pa.Super. 141; Adams v. Beaver Valley Traction Co., 41 Pa.Super. 403; Marcus v. Gimbel Bros., 231 Pa. 200.

Before Porter, Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

OPINION

LINN, J.

Plaintiff, a passenger on defendant's car, was severely beaten by the conductor. He brought suit and got a verdict. Judgment n. o. v. being refused, the transit company appealed. The assignments of error raise only one point; the sufficiency of the evidence to go to the jury. It was to the following effect: plaintiff boarded a car, paid his fare and asked for a transfer, to which he was entitled but which the conductor denied him. On reaching his transfer point, he again asked for the transfer which was again declined. Plaintiff testified the conductor " refused to give it to me and said 'Wait you wop, you dago' and hit me with a black jack." He was knocked down, carried in a patrol wagon to a hospital and after his head was stitched, was taken to a station house. From there he went home and spent three weeks in bed under treatment by a physician for the injuries received in the assault. In some essentials, the plaintiff was corroborated; the conductor himself testified he had " such a heavy trip," he " could not fool with transfers."

Evidence on behalf of defendant was to the effect that the conductor gave plaintiff, who " seemed intoxicated," the transfer at the transfer point and that plaintiff then applied an insulting epithet to him and struck at him whereupon, in self-defense, he assaulted plaintiff with a...