Moraski v. Philadelphia Rapid Transit Co.

• Decision Date: 07 May 1928
• Docket Number: 134,128,127,133
• Parties: Moraski et al. v. Philadelphia Rapid Transit Co. et al., Appellants
• Court: Pennsylvania Supreme Court

142 A. 276

293 Pa. 224

Moraski et al. v. Philadelphia Rapid Transit Co. et al., Appellants

Nos. 127, 128, 133, 134

Supreme Court of Pennsylvania

May 7, 1928

Argued April 16, 1928

Appeals, Nos. 127, 128, 133 and 134, Jan. T., 1928, by defendants, from judgments of C.P. No. 5, Phila. Co., Dec T., 1924, No. 10640, on verdicts for plaintiffs, in case of Frances Moraski, by her father and next friend, and Frank Moraski, in his own right, v. Philadelphia Rapid Transit Co. and Raymond L. Harper et al., trading as United Motor Freight Co. Affirmed.

Trespass for personal injuries. Before MONAGHAN, J.

The opinion of the Supreme Court states the facts.

Verdict for Frances Moraski for $ 22,000 on which judgment was entered for $ 6,500, and verdict and judgment for Frank Moraski for $ 3,000, in opinion by MARTIN, P.J. Defendants appealed.

Errors assigned were judgments, quoting record.

The judgments in the four appeals, entered to Nos. 127, 128, 133 and 134, January Term, 1928, are affirmed.

George H. Detweiler, with him J. J. K. Caskie, for appellant. -- Where the accident to a passenger comes from an external source, the burden of proving want of care on the part of the carman is on the passenger: Laing v. Colder, 8 Pa 479; Mackowski v. Transit Co., 265 Pa. 34; Federal Street, etc., Ry. v. Gibson, 96 Pa. 83; Tilton v. Transit Co. 231 Pa. 63; Cline v. Rys., 226 Pa. 586; Harkins v. Transit Co., 286 Pa. 465; Uffelman v. Transit Co., 253 Pa. 394.

Wm. W. Smithers, for Raymond L. Harper et al., appellants. -- The case would not seem to be within the purview of the Joint Suit Act of June 29, 1923, P.L. 981.

There was a material tendency to prejudice the freight company defendant in the absence of a definite distinction being drawn between the duties owing by the two defendants.

The verdict as reduced was excessive: Howarth v. Express Co., 269 Pa. 280; McCrosson v. Transit Co., 283 Pa. 492.

Grover C. Ladner of Ladner & Ladner, for appellees. -- This case is within the purview of the Joint Suit Act of June 29, 1923, P.L. 981: Cleary v. Cab Co., 285 Pa. 241; O'Malley v. Transit Co., 248 Pa. 292; Downey v. R.R., 161 Pa. 588; Goorin v. Traction Co., 179 Pa. 327; Gorman v. Charlson, 287 Pa. 410.

The liability of the defendant Motor Freight Co. resulted from its own negligence, and if there were negligence it could not be relieved merely because the transit company failed in its duty to exercise the higher degree of care which it owed to its passenger: Harkin v. Transit Co., 278 Pa. 24.

The verdict as reduced was not excessive: Boyle v. Transit Co. 286 Pa. 536; Dziak v. Swaney, 289 Pa. 246.

Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

Frances Moraski, a minor aged eighteen, by her father and next friend, and her father in his own right, brought an action against the United Freight Motor Company and the Philadelphia Rapid Transit Company, claiming that, by reason of the joint negligence of the defendants, the daughter had sustained serious injury. Verdicts were rendered in favor of Frances for $ 22,000, and for the father in the sum of $ 3,000. Later, the court in banc reduced the former to $ 6,500, and judgments were entered for the amounts mentioned against the two defendants. Each has appealed in both cases, assigning, in part, the same errors, and the four appeals were heard as one, and will be disposed of together.

The facts involved are not complicated. The plaintiff, an employee of a hosiery mill, entered the car of the transit company as a passenger, intending to go to her usual place of work. It proceeded west along Allegheny Avenue at a rate of speed found by the jury to be excessive under the circumstances. Jasper Street, crossing at right-angles, was approached without the sounding of a gong, or the giving of other warning. As it was reached, a truck of the United Freight Motor Company advanced from the right, moving north on the intersecting highway at a rapid rate. Though the oncoming trolley was in sight, the driver attempted to cross in front, and had reached the second rail, when the rear of the automobile was hit. Though weighing, with its load, twelve tons, the force of the impact was such as to cause it to overturn, after first moving across the avenue to the northwest corner. Plaintiff, with other passengers in the car, was thrown as a result of the collision, suffering injuries, for which damages were asked.

There was no question of contributory negligence on the part of plaintiff, and the controversy resolved itself into the determination as to which defendant had, by its negligent conduct, caused the injury, or whether it resulted from the concurrent act of both. Under careful instructions, the jury found the latter to be the fact, and rendered verdicts accordingly. There was evidence to show a lack of due care on the part of the transit company, and the same can be said of the codefendant. Evidently the motorman thought he had superior rights on the highway, but this did not relieve him from the duty to use due care to prevent the impending collision: Woomer v. Altoona & L.V.E. Ry. Co., 80 Pa.Super. 261. On the other hand, the driver of the truck apparently believed he was entitled to the right of way since he was approaching the intersection, at the same time, from the right (Act June 30, 1919, P.L. 678), but this did not justify him in proceeding without proper caution: Alperdt v. Paige, 292 Pa. 1. There was sufficient evidence to show negligence by both parties, which concurring caused the accident. Without further discussion, the first assignment of error of the transit company, in which complaint is made of the failure of the court below to grant its motion for a new trial because of lack of sufficient proof of carelessness to justify a verdict in so far as it was concerned, must be dismissed. It cannot be said that there was an abuse of discretion in refusing to grant this request, and it is only in such case that we will interfere: Schuck v. West Side Belt R. Co., 283 Pa. 152.

The negligence of which the car company was guilty is found in the dangerous speed at which the trolley moved in a congested city district, without giving warning at the cross street, but this in itself did not cause the injury to the passenger. The lack of care of the freight company rested on the failure of the driver of its truck to observe caution in crossing Allegheny Avenue in front of the trolley, which was advancing in plain sight, but this alone did not result in harm to the plaintiff. "What injured her was the collision, which was the direct result of the combined negligence of the two defendants, and, for the immediate consequences of what they jointly brought about, they are and ought to be jointly accountable, even though the plaintiff might have sued them separately, joint wrongdoers being liable both jointly and severally": O'Malley v. P.R.T. Co., 248 Pa. 292; Harkin v. Toy and P.R.T. Co., 278 Pa. 24, 30. In this case, the jury has found both parties negligent, and, if so, their concurrent act undoubtedly resulted in the collision, without which plaintiff would not have been injured. They are, therefore, jointly liable for the consequences directly arising from it.

The freight company here complains of its joinder with the Philadelphia Rapid Transit Company as a defendant, and having been so made a party, to the refusal of the court below to continue the trial of the case on the ground of misjoinder. It was contended that the parties could not be made codefendants, since the carrier owed to plaintiff a higher degree of care than did the owner of the motor vehicle. To the overruling of this objection, and the refusal to answer a point stating that the transit company was under greater responsibility toward its passenger than was the freight company, three assignments of...