Longo v. Yellow Cab Co.

• Decision Date: 30 January 1948
• Docket Number: No. 6669.,6669.
• Citation: 79 F. Supp. 478
• Parties: LONGO et ux. v. YELLOW CAB CO.
• Court: U.S. District Court — Western District of Pennsylvania

79 F. Supp. 478

LONGO et ux. v. YELLOW CAB CO.

No. 6669.

District Court, E. D. Pennsylvania.

January 30, 1948.

Israel Packel, of Philadelphia, Pa., for plaintiffs.

James J. Leyden, of Schnader, Kenworthey, Segal & Lewis, all of Philadelphia, Pa., for defendant.

GANEY, District Judge.

This action was brought by Joseph and Cecelia Longo, husband and wife, to recover damages for injuries sustained by the latter while she was a paying passenger in a taxicab, owned and operated by the defendant, a common carrier, which collided with another vehicle at an intersection. This court has jurisdiction because diversity of citizenship exists between the parties. The case was tried before a jury which found for the plaintiffs; the wife was awarded Five Thousand Dollars ($5,000) and her husband, One Thousand Dollars ($1,000).

In accordance with Rule 50(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, the defendant has filed two motions, which are now before the court, one to set aside the verdict and the judgment entered thereon and to enter judgment in its favor in accordance with its motions for directed verdicts made at the conclusion of both the plaintiffs' case and of all the evidence, the other for a new trial.

At the outset, the jury, having found for the plaintiffs, this Court is required to interpret the facts and all inferences which may reasonably be drawn therefrom in the light most favorable to them. Christ v. Hill Metal & Roofing Co., 314 Pa. 375, 378, 171 A. 607; Phillips v. Philadelphia Transp. Co. et al., 358 Pa. 265, 266, 56 A.2d 225. Viewing the record in this manner, we believe the following to be a fair statement of the facts:

In the City of Philadelphia, Pennsylvania, Fifteenth Street, a south-bound highway, intersects Master Street, a west-bound highway, at right angles. These streets are twenty-six feet wide, have macadamized surfaces in good condition, a single set of trolley tracks in their centers, and are one-way streets in their respective directions. At night the intersection is adequately lighted by a single overhead lamp which hangs from a steel arm that extends from a wooden electric wire pole situated near the south curb of Master Street, fifteen feet from the southwest corner of the intersection. There are no traffic controls at this intersection, but an unlighted stop sign, facing to the east, is located on the southeast corner to warn traffic on Master Street that at this particular intersection, Fifteenth Street is a through highway.

At about three o'clock in the morning of November 2, 1946, when the weather was clear and the streets dry, the wife-plaintiff was a paying passenger in defendant's taxicab which was being driven at the rate of at least twenty five miles per hour in a southwardly direction astraddle the east rail of the trolley tracks on Fifteenth Street. As the taxicab was crossing the intersection described above, its left front corner violently struck a Plymouth coupe traveling in a westwardly direction on Master Street. Immediately prior to, or at the time of, the collision, the taxicab swerved suddenly to the right in a southwesterly direction and then continued to proceed in a wide arc in a westwardly and then northwestwardly direction on Master Street. As a result of the impact and/or the sudden swerving of the taxicab, its left doors were flung open and the wife-plaintiff catapulted through the open doorway and out into the street. She landed at a point south of Master Street approximately twenty feet from the path of the taxicab and ten feet from the west curbline of Fifteenth Street. Only the strenuous effort exerted by the driver in clinging to the steering wheel prevented him from being projected in like fashion out of the left front door of the taxicab.

The taxicab, its left rear door (the glass of which was shattered) jammed in a completely opened position facing in a northwestwardly direction, came to a standstill when its forward motion was cut short after striking the left rear fender of an automobile parked in the north cartway of Master Street, forty two feet from the west curbline of Fifteenth Street and approximately sixty feet from the point of impact. Tire skid marks, beginning in the center of Fifteenth Street at a point one foot south of the south rail of the Master Street trolley tracks, plainly marked the path which the taxicab took until it came to rest in the position and place mentioned; the skid marks were between sixty and seventy feet in length. The Plymouth coupe came to a halt partly on the sidewalk after it struck the electric wire pole on the south side of Master Street, fifteen feet west of Fifteenth Street. As a result of the accident, the wife-plaintiff sustained a concussion of the brain, a broken nose and other injuries to her face, limbs and back; she also suffered from shock.

The grounds for defendant's first motion is that (1) there was no evidence of negligence on its part, and (2) the injury sustained by the wife-plaintiff was the proximate result of the negligence of the driver of the Plymouth coupe.

In Pennsylvania a common carrier has a duty of exercising the highest degree of care, vigilance and precaution compatable with its practical operation to prevent injury to its passengers. Hughes v. Pittsburgh Trans. Co., 300 Pa. 55, 150 A. 153; Petri v. Pittsburgh Rys. Co., 328 Pa. 396, 195 A. 107; Deady v. Philadelphia Rapid Transit Co., 100 Pa.Super. 208. This duty placed upon the common carrier does not make it an insurer. Before a common carrier may be held liable for injury to its passengers, it must be shown that it failed to perform the duty imposed upon it by law and that this failure was the proximate cause of the injury. Hughes v. Philadelphia Transit Co., 154 Pa.Super. 162, 35 A. 2d 544. It is only where a passenger sustains injury as the result of defective appliances or means of transportation or some other thing which the carrier can and ought to control as a part of its duty to carry him safely that the burden is cast upon the carrier to exculpate itself from a presumption of negligence: Archer v. Pittsburgh R. Co., 349 Pa. 547, 37 A.2d 539; Schulz v. Reading Transp. Co., 354 Pa. 373, 47 A.2d 213; Dupont v. Pennsylvania R. Co., 337 Pa. 89, 10 A.2d 444, 129 A.L.R. 1337; "in all other cases the burden is upon the passenger to prove such negligence". Nebel v. Burrelli, 352 Pa. 70, 74, 75, 41 A.2d 873, 875. The mere happening of an accident does not raise an inference of negligence. Welsh v. Jump House Wrecking Co., 306 Pa. 228, 159 A. 170; Wilkerson v. Pittsburgh Rys. Co., 309 Pa. 381, 163 A. 909; Pennsylvania R. Co. v. MacKinney, 124 Pa. 462, 17 A. 14, 2 L.R.A. 820, 10 Am.St.Rep. 601; Zaltouski v. Scranton Ry. Co., 310 Pa. 531, 165 A. 847; Kelly v. Philadelphia Transp. Co., 146 Pa.Super. 445, 23 A.2d 57. However this does not mean that negligence on the...