Russo v. Pittsburgh Railways Co.
| Decision Date | 22 March 1949 |
| Citation | 164 Pa.Super. 396,64 A.2d 666 |
| Parties | Russo v. Pittsburgh Railways Company, Appellant |
| Court | Pennsylvania Superior Court |
Argued November 10, 1948.
Appeal, No. 202, April T., 1948, from judgment of Common Pleas, Allegheny Co., Jan. T., 1947, No. 427, in case of Michael Russo v. Pittsburgh Railways Company, now in the hands of W. D. George et al., Trustees.
Trespass for personal injuries. Before Egan, J.
Verdict for plaintiff in the sum of $ 2,000 and judgment entered thereon. Defendant appealed.
D H. McConnell, for appellant.
S V. Albo, with him M. E. Catanzaro, for appellee.
OPINION
Michael Russo, appellee, was employed by an independent contractor to assist in the repair of a water line underlying the street car tracks of the Pittsburgh Railways Company, appellant. He instituted this action in trespass to recover damages for injuries sustained when one of appellant's street cars struck a plank which was lying about two inches from the street car rail. The impact hurled the plank in such a manner as to strike appellee's foot while he was in the act of jumping or running away from the tracks to allow the trolley to pass. A jury returned a verdict for Russo. This appeal is from the order of the court below dismissing appellant's motion for judgment non obstante veredicto.
The verdict of the jury resolved all conflicts in the testimony in favor of appellee and the evidence must be viewed in a light most favorable to him, giving him the benefit of all reasonable inferences and deductions to be made therefrom: Stephany v. Equitable Gas Co., 347 Pa. 110, 31 A.2d 523. Viewed in such light the evidence would warrant the following findings of fact by the jury. On May 21, 1946, about 2:00 p.m., a plumbing contractor, James A. Sweeney, and two of his employes, one of whom was Russo, were engaged in covering a hole in a dummy between two street car tracks on Liberty Avenue in the City of Pittsburgh, after completing repairs to the water line underlying the tracks. Immediately before the accident appellee was nailing wooden planks together to effect a cover or a firm base to temporarily enable traffic to travel over the excavation. The required length of the planks was about four feet. The planks were brought to Russo by his helper, Kelly. One plank provided by Kelly was "one inch too long," whereupon Russo told Kelly he could not use it and requested that another plank be brought to him. Kelly threw that plank in the dummy and proceeded to secure another plank. The discarded plank was about two inches from the inside East Liberty track, and remained lying across the dummy.
Sweeney was stationed fifty to sixty feet from where Russo and Kelly were working to watch southbound traffic. Sweeney stopped the appellant's southbound trolley car and after flagging Russo permitted the trolley to proceed. When Russo saw the street car approaching about thirty or thirty-five feet away he arose from his kneeling position and raised his hands and motioned for it to stop. Russo noticed that the car was not going to stop and "started to run away." He had run only a short distance when the trolley struck the plank and it in turn hit Russo's ankle, fracturing it. Russo continued to cross the street while the street car pulled ahead about forty-five or fifty feet and slowed down. The motorman looked back and again proceeded, apparently ignorant of what had happened.
An eye witness who had been watching Russo work testified that he saw Russo put up his hands to signal the motorman to stop and saw the street car hit the plank which then hit Russo. Appellant's motorman testified that he had no knowledge of an accident happening at that time or place but did recall that men were working there for a few days.
Appellant's sole complaint is that there was no evidence of its negligence, i.e., that the motorman had not breached any duty owed to appellee. More specifically, it is argued that appellee's evidence describing the accident was so confusing and vague that a...
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