Elliott v. Philadelphia Transportation Co.
| Decision Date | 17 January 1947 |
| Docket Number | 3419 |
| Citation | 50 A.2d 537,160 Pa.Super. 291 |
| Parties | Elliott, Appellant, v. Philadelphia Transportation Co |
| Court | Pennsylvania Superior Court |
Argued November 22, 1946.
Appeal, No. 221, Oct. T., 1946, from judgment of C. P. No. 6 Phila. Co., Sept. T., 1943, No. 711, in case of Frank M Elliott v. Philadelphia Transportation Company.
Trespass for personal injuries. Before Kun, J.
Verdict for plaintiff in the sum of $ 1,500; judgment n. o. v entered for defendant. Plaintiff appealed.
Maurice H. Brown, with him Arthur M. Harrison and Robert M. Bernstein, for appellant.
Philip Price, with him Bernard J. O'Connell, for appellee.
OPINION
This appeal is from an entry of judgment n. o. v. for the defendant in a trespass action.
At about 10:30 o'clock on the morning of May 27, 1943, a clear day, the plaintiff was walking south on Preston Street in Philadelphia. When he reached the northwest corner of that street and Haverford Avenue he heard the ringing of a bell or gong and saw a fire engine, which was returning from an alarm of fire, proceeding south on Preston Street toward the firehouse, which is on the northeast corner of Haverford Avenue and Preston Street. He went to the center of the intersecting streets and stood in the middle of the trolley track which traverses Haverford Avenue. The only traffic on this avenue at that time was the defendant's trolley car at 41st Street, a distance of approximately 420 feet, moving eastward at a speed of 25 to 30 miles per hour. When the car was about 400 feet away the plaintiff, acting as a volunteer and probably with the intention of performing a civic duty of preventing collision, as Preston Street is not a regular trolley stop, held up his hands to warn the motorman, whom, the plaintiff said, he could see was looking at him, of the approaching fire engine. He continued to look at the trolley until it was some indefinite point between Budd Street, 230 feet away, and Ludwick Street, approximately 75 feet distant. He testified: "When the trolley car got to Budd Street I turned around and had my hands up and waved for the fire engine to come on, and the trolley car kept moving toward me."
The defendant's evidence was to the effect that this plaintiff jumped in front of the trolley when it was 5 to 20 feet from him.
The trial judge, following the decision in Kasanovich v. George et al., 348 Pa. 199, 34 A.2d 523, instructed the jury that if they found that the motorman was guilty of "wanton misconduct" the defendant was liable even if plaintiff was guilty of ordinary negligence. After a verdict had been returned for the plaintiff the court below concluded, upon further consideration of the testimony that "the proofs clearly showed that the plaintiff was guilty not merely of ordinary negligence, but was guilty of wanton negligence or, otherwise, considered, his conduct was such as to call for the application of the principle of assumption of risk, and on either ground his right to recover was barred." Accordingly defendant's motion for judgment n. o. v. was sustained. This case has similar features to those in the Kasanovich case. The plaintiff's decedent there, in plain view, was walking heedlessly for at least 75 feet, within 18 inches of the outside rail of a trolley track with his back to an oncoming trolley and was struck by the overhang of the car. The motorman, as here, had ample time to take the necessary steps to avoid hitting him. It was held that the contributory negligence of plaintiff's decedent did not bar a recovery, as the motorman's action constituted "wanton misconduct." It is true, however, that the question of whether the decedent recklessly disregarded his safety was not raised or discussed in that case.
We think that neither the doctrine of voluntary assumption of risk, nor wanton misconduct, which are closely related and founded on the same fundamental principles, has any application so far as plaintiff's evidence of his conduct is concerned, and that is all that need be considered in passing upon defendant's motion for judgment n. o. v. We may state in passing that "reckless disregard" for another's safety is preferred to "wanton misconduct" by some text writers. See § 500 Restatement of Torts and Eldredge's "Modern Tort Problems", pp. 179, 180. It could fairly have been assumed by Elliott that the motorman saw him standing on the track giving a signal for the trolley car to stop and that he would not be run down. Whether or not the plaintiff's conduct createdan unreasonable risk involving a high degree of probability of harm to himself was a question for the jury's determination.
The court, in invoking the doctrine of voluntary assumption of risk relied on several cases in Pennsylvania to which we will briefly refer, as warranting the disposal of this case as a matter of law. In De Wald v. Hines, 280 Pa. 169, 124 A. 328, the suit was brought under the Federal Employer's Liability Act, by plaintiff whose decedent, a flagman, went from the rear of his blocked train to flag others and was killed by a passing train on another track. The court below nonsuited the plaintiff because no negligence of defendant was shown. The case was affirmed on appeal, the court holding that whatever risk the employe assumed he incurred in the discharge of his normal duties as a flagman.
In Magyar v. P. R. R., 294 Pa. 585, 144 A. 765, a switchman, while not directly on the tracks, was close to them so that he was hit by the overhang of an express passenger train, which was in his full view. The Supreme Court in granting of a nonsuit said, p. 589: "In the present case Magyar was aware of the dangerous position, was standing upright with the oncoming train in full view, and failed to move out of the reach of the locomotive, when he had ample opportunity to so move." The risk which he took was obvious and the injuries sustained were not the result of an unusual or unexpected act of the locomotive engineer.
In McMichael v. P. R. R., 331 Pa. 584, 1 A.2d 242, the last of this group of cases, the plaintiff in an intoxicated condition was on the tracks of the defendant company. He, of his own accord, selected a hazardous position for the purpose of drinking with some companions. His recovery was barred as he was guilty of contributory negligence. The granting of a nonsuit was upheld by the lower court without passing upon plaintiff's allegation that defendant's engineer was guilty of wilful or wanton misconduct.
Those cases with their dissimilar facts give no aid in the determination of this appeal.
According to text writers the term voluntary assumption of risk is confusing as it is used in a dual sense. First, as synonymous with the term contributory negligence, which implies negligence upon the part of both plaintiff and defendant, and second, where there is no question of defendant's negligence, but where the risk is voluntarily assumed in the course of a master and servant, or some other voluntary, relationship such as landowner and licensee, guest and passenger, etc.: Harper on Torts (1933), 289, 296, §§ 130, 131; Bohlen, Voluntary Assumption of Risk (1906), 20 Harvard Law Review 14.
Section 893 of Restatement of Torts states and some decisions in other jurisdictions, to which reference will be made later hold that if the plaintiff voluntarily and unreasonably exposes himself to a known danger created by defendant's negligence, he is barred from recovery...
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