Scholl v. Philadelphia Suburban Transportation Co.

• Decision Date: 24 March 1947
• Docket Number: 3306
• Citation: 51 A.2d 732,356 Pa. 217
• Parties: Scholl, Admrx., v. Philadelphia Suburban Transportation Company, Appellant
• Court: Pennsylvania Supreme Court

51 A.2d 732

356 Pa. 217

Scholl, Admrx., v. Philadelphia Suburban Transportation Company, Appellant

No. 3306

Supreme Court of Pennsylvania

March 24, 1947

Argued January 8, 1947

Appeal No. 18, Jan. T., 1947, from judgment of C.P., Delaware Co Sept. T., 1945, No. 1, in case of Joy E. Scholl, Admrx Estate of Frank H. Scholl, Sr., dec'd, v. Philadelphia Suburban Transportation Company. Judgment affirmed.

Trespass for wrongful death. Before SWENEY, J.

Verdict for plaintiff in sum of $6858.50 and judgment entered thereon. Defendant appealed.

Judgment affirmed.

D. Malcolm Hodge , with him Hodge, Hodge & Balderston , for appellant.

John J. Cahill , with him Edward D. McLaughlin , for appellee.

Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

OPINION

MR. JUSTICE JONES

The action of trespass, here involved, was instituted by Joy E. Scholl, acting individually and as administratrix of her deceased husband's estate, in an effort to recover damages for personal injuries to herself and for the alleged wrongful death of her husband resulting from a grade crossing collision between a trolley car of the defendant company and an automobile driven by the plaintiff's husband in which she was a passenger. The plaintiff alleges that the injuries to herself and her husband resulted from the negligence of an employee or servant of the defendant company in the operation of its trolley car. In connection with the cause of action so asserted by the plaintiff in her individual right, the defendant company joined her in her representative capacity as an additional defendant on an allegation that the accident was due to the negligence of the deceased husband in his operation of the automobile.

The defendant rested at trial without offering evidence, and the learned trial judge submitted to the jury two questions, (1) whether the defendant company, acting by its employees or servants, was guilty of causative negligence and (2) whether the deceased husband was contributorily negligent. The verdicts, as returned by the jury, were in favor of the plaintiff and against the original defendant in the respective sums of $120 to the plaintiff in her individual right and $6,858.50 to the plaintiff as administratrix of her deceased husband's estate. At the same time the jury, by its verdict, exculpated the deceased husband of any negligence responsible for the accident. The defendant filed a motion for judgment n.o.v., and the plaintiff moved for a new trial of her personal cause of action. The court below dismissed both motions, and judgments on the verdicts were duly entered. The plaintiff did not appeal in her individual action where her motion for a new trial was refused. The instant appeal is by the defendant company from the judgment for the plaintiff as administratrix.

The appellant contends that the evidence fails to show the defendant company negligent but that it does prove the plaintiff's deceased husband to have been guilty of the causative fault. We necessarily turn, therefore, to the facts, mindful of the requirement that "... in reviewing the denial of a motion for judgment n.o.v. we must read the testimony in a light most advantageous to plaintiffs' decedent and all conflicts therein must be resolved in [his] favor: Muehlhof v. Reading Co., 309 Pa. 17, 162 A. 827; Ranck v. Sauder, 327 Pa. 177, 193 A. 269": Delmer v. Pittsburgh Railways Company , 348 Pa. 147, 150, 34 A.2d 502. Only three witnesses testified at trial relative to matters touching liability, viz., the plaintiff, who remembers nothing of the accident or of the circumstances attending it, Officer Cavanaugh, who arrived at the scene shortly after the accident, and Mrs. Meloy, the only eye-witness to the accident. From their testimony, the following constitutes the material facts and inferences to which the plaintiff is entitled in the circumstances.

On September 21, 1944, at approximately 7:15 P.M., Scholl, the decedent, was driving his sedan automobile northwardly on the easterly side of Turner Avenue in Drexel Hill, Delaware County, just south of the intersection of Turner Avenue and the defendant company's right of way in that area. The right of way runs east and west and contains a double set of tracks which cross Turner Avenue at substantially right angles. Mrs. Scholl, the plaintiff and appellee, was seated beside her husband. It was still daylight; the weather was clear; and the roadway, dry. At the particular time, the defendant, by its agents and employees, was operating one of its trolley cars eastwardly between Media and the 69th Street Terminal on the eastbound or south track. Just west of the crossing the defendant's tracks curve sharply to the north. On the easterly side of Turner Avenue, a few feet south of the crossing, there is a sign marked "Railroad Crossing -- Stop -- Look and Listen". Along the westerly side of Turner Avenue, south of the crossing, are trees and bushes extending to within twelve feet of the nearest rail of the tracks. There is no scheduled car-stop at the intersection and no traffic light. When Scholl's automobile, proceeding at a speed of seven to nine miles an hour, was in the course of crossing the near or eastbound track, it was suddenly struck by the defendant's trolley car squarely amidships on the lefthand, or driver's, side. As a result of the impact the automobile was pushed by the trolley car some thirty-five feet down the tracks and off to the side where it came to rest with its front facing west, the left wheels in the north or westbound track and its right side leaning against a pole on the north side of the tracks. When the trolley car finally came to a stop, it was approximately one hundred and fifty feet beyond the point of collision. As a result of the collision, the decedent suffered injuries which caused his death four days later and the plaintiff suffered certain personal injuries not presently material.

The primary question raised by the appellant is whether the evidence is sufficient to warrant a jury's finding that the injury to the plaintiff and her decedent was the result of negligence on the part of the defendant company. We think that question must be answered in the affirmative. From the evidence, the jury could justifiably find that, at the time of the collision, the defendant's trolley car was being operated by its employed in a reckless manner without regard for the life or limb of pedestrians or other travellers engaged in the lawful use of the intersecting public highway. That the crossing is a dangerous one will hardly be denied -- a condition that is accentuated by the absence of either crossing watchman or traffic signal. At a dangerous public crossing the operator of a trolley car (even though it has a superior right of way) owes a duty of exercising a high degree of care towards persons reasonably to be expected to appear at the crossing, such as pedestrians, motorists and other travellers: Kuhns v. Conestoga Traction Co., 290 Pa. 303, 306-307, 138 A. 838; Schaeffer v. Reading Transit Co., 302 Pa. 220, 222-223, 153 A. 323. Because of the naturally greater use of public crossings, the degree of care required of a trolley operator at such a crossing is, of course, higher than that required at private crossings: Kuhns v. Conestoga Traction Co., supra. "It is the duty of a motorman to keep a constant lookout ahead, and to have such control of his car as to avoid dangers ordinarily incident to its operation, and also to avoid such unusual and unexpected dangers as he saw in time to avoid": Hamley v. Pittsburgh Railways Company, 345 Pa. 380, 384, 28 A.2d 911, quoting from Cox v. Wilkes-Barre Railway Corporation, 340 Pa. 554, 17 A.2d 367, which, in turn, had quoted from Tatarewicz v. United Traction Company, 220 Pa. 560, 69 A. 995; also adopted in Hoffman v. George, 155 Pa.Super. 501, 506, 38 A.2d 504. It is that duty which the jury could find the defendant's operator breached in the instant circumstances. The speed with which he must have driven the trolley car onto the highway crossing, without advance warning signal, left a traveller on the highway, who desired to cross the tracks in safety, little...