Hajduk v. Fague

• Citation: 186 A.2d 869,200 Pa.Super. 55
• Parties: Stanley HAJDUK, Appellant, v. Earl E. FAGUE, Auto Rental Company, a Corporation, and Pennsylvania Railroad Company, a Corporation, Defendants, and City of Pittsburgh, Additional Defendant.
• Decision Date: 12 December 1962
• Court: Pennsylvania Superior Court

Page 869

186 A.2d 869

200 Pa.Super. 55

Stanley HAJDUK, Appellant, v. Earl E. FAGUE, Auto Rental Company, a Corporation, and Pennsylvania Railroad Company, a Corporation, Defendants, and City of Pittsburgh, Additional Defendant.

Superior Court of Pennsylvania.

Dec. 12, 1962.

Application for Allocatur Denied Feb. 7, 1963.

Samuel L. Goldstein, Edward J. Balzarini, Suto, Power, Goldstein & Walsh, Pittsburgh, for appellant.

David B. Fawcett, Jr., Dickie, McCamey, Chilcote & Robinson, Pittsburgh, for appellee.

Robert S. Grigsby, Pringle, Bredin & Martin, Pittsburgh, for Pennsylvania R. Co.

David W. Craig, City Sol., Marcus Aaron, II, Asst. City Sol., Pittsburgh, for City of Pittsburgh.

Before RHODES, P. J., and ERVIN, WRIGHT, WATKINS, MONTGOMERY and FLOOD, JJ.

MONTGOMERY, Judge.

This appeal involves an action in trespass in which the appellant sought damages from three defendants: Earl E. Fague, Auto Rental Company, and the Pennsylvania Railroad. The Pennsylvania Railroad named the City of Pittsburgh as an additional defendant. Appellant instituted proceedings to recover damages suffered by him on November 13, 1954, while he was riding as a guest passenger in a truck owned by the defendant Auto Rental Company and leased to and operated by the defendant Fague, when the truck struck and collided with an overhead pass or trestle owned and maintained by the defendant Pennsylvania Railroad Company on Merchant Street, in the City of Pittsburgh. The truck overturned and the appellant sustained the injuries set forth in his complaint.

The Pennsylvania Railroad joined the City of Pittsburgh, alleging that it was liable on the grounds that it had changed the grade of Merchant Street causing a lessening of the clearance, and that although notified of the defective condition, had failed to restore or have restored certain clearance signs that had originally been placed there by the Pennsylvania Railroad.

On the morning of the day of the accident the defendant Fague had rented the truck for the purpose of moving certain furniture. He had requested the appellee, a fellow employee, to assist him in this task.

It was stipulated that defendant Auto Rental Company, prior to the accident, had notice of the insufficient clearance at the southerly approach to the underpass because of five other accidents involving vehicles leased by it which were damaged by the insufficient clearance. It was further stipulated that the Pennsylvania Railroad had knowledge of this defective condition and of the five similar accidents. Although, originally, there had been a clearance sign indicating the clearance at this point, the sign had been removed at least one year prior to the date of the accident involved herein.

There was a dispute at the trial whether defendant Fague had been warned of the dangerous condition at the underpass. Auto Rental Company produced evidence to show that it had posted signs in its office and in each of its trucks not to use the underpass in question. Fague denied that such signs were posted and said he was given no warning. Fague, called as for cross-examination, testified that he was operating the leased truck at the rate of five to seven miles per hour downhill toward the underpass, and had no knowledge that the clearance at this point was insufficient to permit the truck to pass underneath the trestle. He denied any notice had been given to him, and that although he had leased trucks from Auto Rental Company on occasions between 1941 and 1948, and during those years had used the underpass involved, he had had no occasion to lease a truck or to drive underneath this underpass between 1948 and November 13, 1954.

Appellant testified that he was a passenger in the leased truck operated by Fague at the time of the accident. He also denied that any notice or warning had been given by any employee of Auto Rental Company to Fague. He also denied that he observed any signs or warnings in the office or on the dashboard of the truck warning lessees to avoid this overhead trestle. He further testified that there was no clearance sign at the southerly approach to the said underpass at the time of the accident.

The general manager of Auto Rental Company testified in its defense that he had knowledge of the five similar accidents which had occurred before the said date, and that, in an attempt to prevent further accidents, he had signs posted in the office and affixed to the trucks warning lessees of the existence of the low underpass. He stated that the railroad had removed the clearance signs, and had been requested by him to post warning clearance signs at the approach. He had made complaints to the City of Pittsburgh of this dangerous condition, which he charged was caused by the City of Pittsburgh having effected a change in grade in the course of resurfacing Merchant Street. He did not personally warn Fague or hear anybody else warn him. Neither did he inspect the truck before or after the accident to ascertain whether a warning notice was posted therein. Two other witnesses for the Auto Rental Company corroborated the testimony of the general manager, and one testified that he had overheard Fague being warned about the underpass.

Defendant Pennsylvania Railroad Company introduced no evidence on the question of liability. The additional defendant, the City of Pittsburgh, by its witnesses, a city engineer and the superintendent of the Asphalt Division of the city, denied that the city had resurfaced or changed the grade of Merchant Street at the scene of the accident between 1944 and 1954.

The jury returned a verdict of $4,000 against the defendant Fague, absolving the remaining defendants. appellant and defendant Fague then filed motions for a new trial. Defendant Fague joined in the brief filed by the plaintiff and adopted the latter's arguments for a new trial.

Appellant's case was based upon the premise that the defendants, Fague, Auto Rental Company, Pennsylvania Railroad Company, and the additional defendant, the City of Pittsburgh, were jointly, severally and/or individually negligent, and that joint, several and/or individual negligence was the proximate cause of the accident herein involved. Appellant contends, however, that the trial court based its charge, in effect, upon the premise that if the jury believed that the defendant Fague was negligent, the jury must return a verdict in favor of the other defendants. Appellant points specifically to the points for charge submitted by Auto Rental Company imputing the negligence of the driver to his passenger, the appellant.

'2. If you find that Earl E. Fague was given any warning of the danger at the Merchant Street underpass, also known as Clark underpass, your verdict must be in favor of the Auto Rental Company.

'3. If you find that Earl E. Fague knew of the potential danger at the Merchant Street underpass, your verdict must be in favor of the Auto Rental Company.'

Plaintiff further contends that the trial court erred in affirming and reading to the jury, as part of its charge, the following points for charge submitted by the Pennsylvania Railroad Company, and in some instances almost identically by the City of Pittsburgh.

'2. Under the evidence in this case, you cannot render a verdict against the Pennsylvania Railroad Company, because there was no clearance in feet and inches posted on its trestle over Merchant Street on November 13, 1954.

'4. If you do find that the Pennsylvania Railroad Company was negligent, but that its negligence created merely a passive background or circumstance of the accident, the plaintiff would not be entitled to recover against the Railroad if the accident was in fact caused by an intervening act of negligence which was a superseding cause.

'5. If you find that Earl Fague became aware of the potential danger dealing with the low clearance at the Merchant Street underpass, and thereafter, by an independent act of negligence brought about the accident, the Pennsylvania Railroad Company would be relieved of liability because its conduct merely was a circumstance of the accident and not a proximate cause.

'7. If you find that the Auto Rental Company became aware of the fact that its trucks moving in a southerly direction would...