Greenwood v. Union Traction Co.

• Decision Date: 24 April 1906
• Docket Number: 158-1905
• Citation: 30 Pa.Super. 488
• Parties: Greenwood, Appellant, v. Union Traction Company
• Court: Pennsylvania Superior Court

30 Pa.Super. 488

Greenwood, Appellant, v. Union Traction Company

No. 158-1905

Superior Court of Pennsylvania

April 24, 1906

Argued October T., 1905 [Syllabus Matter]

Appeal by plaintiff, from judgment of C.P. No. 3, Phila. Co.-1902 No. 1,125, on verdict for plaintiff in case of James Greenwood v. Union Traction Company.

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

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

The court charged in part as follows:

[Now, as you take one or the other of those views, you will come to the conclusion, first, whether the defendant was negligent; and, second, whether the plaintiff was careless. Because, if the conductor pushed the man off after he got upon the step of the car, with violence enough to throw him to the ground and injure him, and then started the car, that is evidence from which you may find -- you are not bound to find it -- but you may find that the action of the conductor was negligent or careless.]

[In this case there has been a request made by the plaintiff's counsel for me to allow you to determine whether or not the conductor was guilty of such grossly negligent conduct, or such willful misconduct, as to justify you in finding a verdict against the defendant company for what are called in the law exemplary damages. I shall explain that a little more fully hereafter, but in my opinion there is no evidence to submit to you on that point. I do not think there is any evidence that the conductor willfully and maliciously pushed the man off, nor is there any evidence that the circumstances were those of violence, oppression, outrage or wanton recklessness. It is the duty of the court to determine upon any question of fact whether there is any evidence to go to the jury, and, without elaborating the question, I instruct you that there is no evidence which would justify you in inflicting a verdict for what are called exemplary damages. That is, you cannot, as the learned counsel for the plaintiff urged you to do, give a verdict against this defendant company in this case as an example, for that is what exemplary means; nor can you give a verdict in dollars and cents under the evidence in this case to punish the defendant, which is called a punitive verdict. I shall not take your time in going into the law. It is well established in Pennsylvania that for a wanton or malicious act of an employee a company may be punished. There may be such wanton and malicious circumstances as to justify a jury, under proper instructions from the court, in punishing a defendant, but our highest courts have said that it is the duty of the judge who is trying the case to determine whether or not there is such evidence, and, after careful consideration, I have come to the conclusion that there is not. I have heard no evidence which persuaded me that the conductor acted wantonly or recklessly. He acted, as far as the evidence shows -- whether or not he made a mistake in carrying it out -- under the belief that the man was an intoxicated person, and there is nothing to show that he acted wantonly. I shall not elaborate this, because I have taken the question away from you, but shall simply say that I heard no evidence, and there was none, to justify a verdict for exemplary damages.]

Verdict and judgment for plaintiff for $ 200. Plaintiff appealed.

Errors assigned were in permitting the plaintiff to be questioned as to his citizenship; above instructions, quoting them.

Affirmed.

Pierce Mecutchen, with him Joseph H. Taulane, for appellant. -- The appellant contends that the small amount of the verdict was directly due to the fact that the court charged the jury that there was no evidence upon which they could award punitive damages, which charge was erroneous because there was evidence that the conductor, without any good cause, pushed the plaintiff backward off defendant's car, while the car was in motion, which appellant contends showed both wantonness and recklessness: Lake Shore, etc., Ry. Co. v. Rosenzweig, 113 Pa. 519; Artherholt v. Erie Electric Motor Co., 27 Pa.Super. 141; McDonough v. R. R. Co., 137 Mass. 210; Phila. Traction Co. v. Orbann, 119 Pa. 37; People's Nat. Gas Co. v. Millbury, 2 Mona. 145; Huling v. Henderson, 161 Pa. 553.

The appellant contends that the fact that the plaintiff was not a naturalized citizen was absolutely irrelevant to the case, and that its admission in evidence on behalf of the defendant was calculated to prejudice the jury against the plaintiff, and in view of the smallness of the verdict, constitutes a proper ground for reversal.

Thomas Leaming, for appellee. -- The court was correct in charging that the evidence did not warrant smart money or punitive damages: Philadelphia Traction Co. v. Orbann, 119 Pa. 37; Lynch v. Troxell, 207 Pa. 162; Artherholt v. Erie Electric Motor Co., 27 Pa.Super. 141; Pittsburg, etc., R. R. Co. v. Pillow, 76 Pa. 510; Pittsburg, etc., Ry. Co. v. Hinds, 53 Pa. 512.

Before Rice, P. J., Beaver, Porter, Morrison and Henderson, JJ.

OPINION

PORTER, J.

The plaintiff brought this action to recover damages for injuries alleged to have been sustained by him, in falling after having been pushed from a moving car by a conductor of the defendant company. The plaintiff had testified in chief that he resided at Frankford, in the city of Philadelphia, and the court below permitted him to be asked on cross-examination whether he was a naturalized citizen, which is the foundation of the first specification of error. The plaintiff having seen fit to prove his place of residence, there was no impropriety in permitting the defendant to inquire whether he was a citizen of the United States as well as a resident of the city of Philadelphia. The admission of this evidence certainly did the plaintiff no harm, for the jury rendered a verdict in his favor, although his cause was sustained only by his own testimony and that of three witnesses, while their testimony was contradicted by that of seven witnesses, five of whom were disinterested.

The second specification of error is without merit. When the court said to the jury: " If the conductor pushed the man off after he got upon the step of the car, with violence enough to throw him to the ground and injure him, and then started the car, that is evidence from which you may find . . you are not bound to find it, but you may find that the action of the conductor was negligent or careless," it was not repeating nor attempting to repeat the testimony. The jury could only have understood that if from all the testimony they found the fact to be as stated, that it was for them to say whether the action of the conductor was negligent. The learned judge in no part of his charge misquoted the testimony. Whether the car had started when the conductor put his hand upon the breast of the plaintiff and told him that he could not enter the car was, under the evidence, a...