Izzi v. Philadelphia Transp. Co.

• Decision Date: 12 November 1963
• Citation: 412 Pa. 559,195 A.2d 784
• Parties: Louis IZZI v. PHILADELPHIA TRANSPORTATION COMPANY, Appellant, and Neil Douthart. Neil DOUTHART v. PHILADELPHIA TRANSPORTATION COMPANY, Appellant.
• Court: Pennsylvania Supreme Court

Page 784

195 A.2d 784

412 Pa. 559

Louis IZZI v. PHILADELPHIA TRANSPORTATION COMPANY, Appellant, and Neil Douthart.

Neil DOUTHART v. PHILADELPHIA TRANSPORTATION COMPANY, Appellant.

Supreme Court of Pennsylvania.

Nov. 12, 1963.

Rehearing Denied Dec. 16, 1963.

Harry A. Takiff, Philadelphia, for appellant

Joseph M. Leib, Philadelphia, for appellee.

Before BELL, C. J., and JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

BELL, Chief Justice.

These appeals arise out of actions of trespass brought by appellees for personal injuries resulting from an unusual occurrence involving a so-called trackless trolley and an automobile, which occurred June 17, 1958. The trolley was an instrumentality of appellant, Philadelphia Transportation Company (hereinafter sometimes referred to as P.T.C.), and the automobile was a 1/2 ton Ford pickup truck which was owned and operated by appellee, Neil Douthart. Appellee, Louis Izzi, was a passenger in the truck. Initially, Izzi sued P.T.C.; P.T.C. joined Douthart as additional defendant. Douthart also sued P.T.C. By stipulation of counsel the cases were consolidated for trial. Although the exact verdict which was rendered is challenged, we are satisfied that the jury returned two verdicts against P.T.C., one of $58,423.75 in favor of Izzi, and one of $1,000.00 in favor of Douthart. In each case, P.T.C.'s motion for judgment non obstante veredicto, and, alternatively, for a new trial, was denied; and from the judgment entered on each verdict P.T.C. took an appeal.

We believe it will clarify the issues and this Opinion if we state at the beginning (1) that there was no collision between the trolley and the truck, and (2) that the trial Judge submitted the cases to the jury on the twofold basis of (a) negligence, and (b) the exclusive control doctrine.

In disposing of defendant's motion for judgment non obstante veredicto, we shall of course consider the evidence in the light most favorable to the verdict winners, giving them the benefit of all reasonable inferences therefrom: Zilka v. Sanctis Construction Co., 409 Pa. 396, 186 A.2d 897; Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864.

It is equally well established that 'The grant or refusal of a new trial by the lower Court will not be reversed by this Court in the absence of a clear abuse of discretion or an error of law which controlled

the outcome of the case: F. C. Haab Co., Inc. v. Peltz Street Terminal[s], Inc., 407 Pa. 276, 278, 180 A.2d 35; Bohner v. Eastern Express, Inc., 405 Pa. 463, 472, 175 A.2d 864 [supra]; Segriff v. Johnstown, 402 Pa. 109, 114, 166 A.2d 496'. Menyo v. Spahr, 409 Pa. 223, 225, 186 A.2d 9.

FACTS

Considering the facts in the light most favorable to the verdict winners, the facts may be thus summarized.

A trackless trolley operated by P.T.C. was proceeding south on Oxford Avenue at a speed of between 10 and 15 miles per hour. Approximately thirty-five feet behind the trolley, Douthart's pickup truck was also proceeding south on Oxford Avenue at a speed of between 10 and 25 miles per hour. According to Douthart, at a point between Kenwyn Street and Dyre Street, both of the poles atop the trackless trolley became disconnected from the overhead wires (power lines) with which such poles are normally in contact and began to swing wildly back and forth and up and down. Douthart immediately started to pull his truck to the left so it would not be right behind the trackless trolley. He testified that shortly thereafter 'I felt a jar, a crash, and I saw a big light of fire in the reflection of the mirror coming in the side of the door.' Douthart immediately 'jammed on' his brakes, and as a result both he and his passenger Izzi were thrown violently about in the truck, and both received bodily injuries.

The 'big light of fire' referred to by Douthart resulted from the fact that one of the swinging poles on the top of the trackless trolley came into contact with and severed a guy wire--an overhead wire which stretched between poles on either side of the street and extended from curb to curb. The severed guy wire whiplashed across the power lines, causing a short circuit or an arcing which produced the flash. The 'crash' referred to by Douthart was the noise made when the small porcelain knob of an insulator which had been attached to the guy wire fell and apparently struck the left hand rear side of Douthart's truck.

The operator of the trackless trolley did not become aware of the fact that one or more of the poles was disconnected from the overhead wire or wires until several seconds later when one of the poles severed a guy wire. There was no warning device inside the trolley which would inform the operator of the poles' position but the operator testified that he could tell whether the pole was off 'by the noise of the poles.' ¹ The trackless trolley went approximately 100 feet from the time the poles became disconnected until one of them hit the guy wire, and it then went another 80 feet before it was stopped. The Douthart truck stopped at a point to the left of the trackless trolley, with the rear of the truck a few feet to the rear and to the left of the trolley. As above mentioned, there was no collision or contact whatever between the trolley and the truck.

There are two types or kinds of trolleys in Philadelophia--the standard or old trolley car and the modern or trackless trolley. For many decades, streetcars have been in use on the streets of Philadelphia. The standard or old type of trolley had an overhead pole which, by means of a small grooved metal wheel on the end of the pole, made contact with an overhead electric wire. Such overhead wire was usually extended down the center of a street. With this standard type of trolley it was by no means an uncommon event for the metal wheel on the pole to become disconnected from the overhead power line and for the pole thereafter to strike the overhead power line.

When that happened, it usually produced an electric flash.

A trackless trolley is in some respects, such as mechanism and power, different from the standard trolley. The trackless trolley has two overhead wires. Two poles are mounted on the roof of a trackless trolley, both of which make contact with the overhead wires by means of what are called 'shoes.' The shoes allow the poles to swing laterally, thereby permitting a trackless trolley to be operated along the sides of a street instead of (solely) along the center line of the street, as is the case with the standard trolley.

EXCLUSIVE CONTROL

Plaintiff contended and the Court below held that under the aforesaid facts and circumstances the doctrine of exclusive control applied, and the question of P.T.C.'s negligence was therefore and thereunder a question for the jury. This was error. Neither res ipsa loquitur nor the doctrine of exclusive control applies. Miller v. Montgomery, 397 Pa. 94, 152 A.2d 757; Seburn v. Luzerne & Carbon Co. M. T. Co., 394 Pa. 577, 580, 148 A.2d 534; Nebel v. Burrelli, 352 Pa. 70, 74-75, 41 A.2d 873; Killen v. Pennsylvania R. R. Co., 376 Pa. 320, 328, 102 A.2d 140; Miller v. Pennsylvania R. R. Co., 368 Pa. 507, 511, 84 A.2d 200; Schickel v. Yellow Cab Company, 369 Pa. 356, 85 A.2d 138; Lanning v. Pittsburg Rys. Co., 229 Pa. 575, 79 A. 136, L.R.A.,N.S., 1043; Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21; Stewart v. Morow, 403 Pa. 459, 170 A.2d 338; Kepner v. Harrisburg Traction Company, 183 Pa. 24, 38 A. 416; Benson v. Philadelphia Rapid Transit Company, 248 Pa. 302, 93 A. 1009; Clark v. Philadelphia Rapid Transit Company, 241 Pa. 437, 88 A. 683; Zercher v. Philadelphia Rapid Transit Company, 50 Pa.Super. 324.

The doctrine of exclusive control appears to be widely misunderstood. Exclusive control alone is not sufficient to invoke or apply the doctrine. For example, an automobile which strikes a pedestrian on the street is in the exclusive control of the driver, yet the principles of negligence and not that of exclusive control apply. ² If a pedestrian, or a person on, or stepping on or off, a trolley car is injured, the trolley car is in the exclusive control of its operating company, yet the principles of negligence and not that of exclusive control apply. ³ If a passenger is injured while walking on a railroad track or while getting on or off a train, or if a person is injured by a falling object in a home, the train is in the exclusive control of its operating company and the home is in the exclusive possession of the owner, yet the principles of negligence and not that of exclusive control apply. ⁴ If an airplane crashes killing a passenger, the plane was in the exclusive control of the pilot but the exclusive control doctrine does not apply. ⁵ Finally, and factually directly in point and controlling, when a pole has become dislodged from a standard trolley and with or without an electric flash injures a person, the trolley was in the exclusive control of the operating company, yet (1) the plaintiff must prove by a fair preponderance of the evidence that (a) defendant was negligent in a specific manner and (b) its negligence was the proximate cause of the accident and (2) the doctrines of exclusive control and res ipsa loquitur do not apply: Cases supra.

Before we discuss infra these cases which support the above mentioned propositions, we deem it wise to reiterate that the doctrine of exclusive control, which has often been termed a dangerous doctrine, is in the last analysis applied only under very unusual conditions and only because of necessity. It negates long established rules of evidence which have become rules of substantive law. It is well established that the doctrine raises an inference of negligence and shifts to the defendant the burden of going forward with the evidence, and thus takes all such cases to the jury. However, it is rarely ever recognized that in the last analysis, it also practically and in reality shifts to the defendant the burden of proving...