Lindh v. Protective Motor Service Co., Inc.
| Decision Date | 03 January 1933 |
| Docket Number | 271 |
| Parties | Lindh v. Protective Motor Service Co., Inc., Appellant |
| Court | Pennsylvania Supreme Court |
Argued December 6, 1932
Appeal, No. 271, Jan. T., 1932, by defendant, from judgment of C.P. No. 5, Phila. Co., March T., 1931, No. 4155, in case of Margaret M. Lindh v. Protective Motor Service Co., Inc. Affirmed.
Trespass for death of plaintiff's husband. Before LAMBERTON, J.
The opinion of the Supreme Court states the facts.
Verdict for $30,774.12, remitted to $25,774.12, and judgment thereon. Defendant appealed.
Error assigned, inter alia, was refusal of judgment n.o.v., quoting record.
The judgment is affirmed.
Raymond A. White, Jr., with him Maurice W. Sloan, of Sloan, White & Sloan, for appellant. -- One is liable only for the natural and probable consequences, such as might and should be foreseen in the light of common experience: Stearns v Spinning Co., 184 Pa. 519; Bannon v. R.R., 29 Pa.Super. 231.
There was no evidence of negligence: Zahniser v. Torpedo Co., 190 Pa. 350; Direnzo v. Iron Works, 265 Pa. 561; Kosson v. Power Co., 293 Pa. 131.
The verdict was excessive: Com. v. Slade, 91 Pa.Super. 533; Lancaster v. Reese, 260 Pa. 391; Murphy v. R.R., 292 Pa. 213, 217; Glasco v. Green, 273 Pa. 354; Windel v. Davis, 275 Pa. 23.
Francis M. McAdams, with him Frank J. Eustace, Jr., and Andrew B. McGinnis, for appellee. -- Defendant's negligence was for the jury and its finding for plaintiff was proper: Gaussman v. Ry., 55 Pa.Super. 542; Fredericks v. Refining Co., 282 Pa. 8; Winans v. Randolph, 169 Pa. 606.
The verdict of the jury will not be disturbed unless clearly and palpably exorbitant and unjustified by the evidence: Wilson v. Beef Co., 295 Pa. 168; Herb v. Hallowell, 304 Pa. 128; King v. Gas Co., 307 Pa. 287.
The verdict was not excessive: Paul v. Refining Co., 304 Pa. 360; Wilson v. Beef Co., 295 Pa. 168; Parkin v. P.R.T., 300 Pa. 569.
Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Defendant asks us to say it is not liable in damages to plaintiff for the death of her husband, that his death was brought about by an unfortunate accident, for which no one was responsible, and out of which no cause of action arises. We find ourselves unable to so conclude, and agree with the court below that the act of defendant's employee, in dropping the revolver which killed appellee's husband, was, under the circumstances, a negligent one.
Defendant is engaged in furnishing a protective service to banks in the removal and transportation of money and other valuables. Its employees when in its service are armed with weapons and accoutrements furnished by it. One of defendant's employees was gathering up specie boxes in the financial institution where plaintiff's husband was employed as night manager. Around the man's waist was a belt to which was attached a holster containing a revolver. Over the top of the holster was a strap which when fastened held the revolver securely in place. Defendant's employee had not fastened this strap. It was shown that it is customary when revolvers are being carried by police and armed men in defendant's business to have the hammer of the weapon on an empty chamber so that pressure on the hammer or other fortuitous happening cannot cause the revolver to discharge.
In stooping over to pick up the specie boxes, defendant's employee caused the revolver to slip from the holster and fall to the concrete floor. It was discharged and the bullet struck the deceased, who was standing near by, killing him instantly. His death resulted from two thoughtless acts on the part of the carrier of the revolver, his failure to fasten the strap over the top of the holster and his neglect to put the hammer on an empty chamber. The general rule is that persons handling or carrying loaded firearms in the immediate vicinity of others are held to a very high degree of care and are liable for injury to another in his person or property resulting from the firearm's discharge, even though the discharge is accidental and unintentional, provided it is not unavoidable: 40 Cyc. 872; 20 R.C.L. 52; Thompson on Negligence, 2d edition, volume 1, section 787. "A higher degree of care is required in dealing with a dangerous agency than in the ordinary affairs of life or business; . . . every reasonable precaution suggested by experience and the known danger ought to be taken:" Fredericks v. Atlantic Refining Co., 282 Pa. 8, 13.
A case somewhat similar to the one at bar is Gaussman v. Phila. & Reading Ry. Co., 55 Pa.Super. 542. There the plaintiff went into defendant's station to procure a ticket. The agent of the defendant, in removing a revolver from the drawer of a desk, accidentally struck the trigger against the edge of the drawer and the revolver exploded, the bullet striking the plaintiff. He was allowed to recover damages for his injuries. Another firearm case where recovery was allowed is Winans v. Randolph, 169 Pa. 606. Our conclusion is that under the facts shown plaintiff in the instant case cannot be denied recovery as a matter of law.
A further complaint of appellant is that the verdict is excessive. As rendered, it was for $30,774.12. This the court below reduced to $25,774.12. Of this sum $774.12 was for funeral expenses. The damages fixed by the jury were too high; as diminished they are close to the border of excessiveness. Some rather unusual factors are to be taken into account in determining the reasonableness of the...
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