Simon v. Philadelphia Rapid Transit Co.
| Citation | 160 A. 111,306 Pa. 466 |
| Decision Date | 14 March 1932 |
| Docket Number | 394 |
| Parties | Simon v. Philadelphia Rapid Transit Co., Appellant |
| Court | United States State Supreme Court of Pennsylvania |
Argued January 8, 1932
Appeal, No. 394, Jan. T., 1931, by defendant, from judgment of C.P. No. 5, Phila. Co., Dec. T., 1929, No. 733, on verdict for plaintiff, in case of Bertha Simon v. Philadelphia Rapid Transit Company. Affirmed.
Trespass for death of plaintiff's husband. Before SMITH, P.J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $10,000. Defendant appealed.
Errors assigned were in refusing binding instructions for defendant and in refusing motion for judgment for defendant n.o.v. quoting record seriatim.
The judgment is affirmed.
Marshall A. Coyne, with him Bernard J. O'Connell, for appellant. -- There was no evidence of defendant's negligence: Brague v. Ry., 192 Pa. 242; Phila. & Reading R.R. v. Hummell, 44 Pa. 375; Gray v. R.R., 293 Pa. 28.
Defendant was guilty of contributory negligence: Bass v. R.R., 303 Pa. 382; Magyar v. P.R.T. Co., 294 Pa. 585; Bardis v. R.R., 267 Pa. 352; Kilgallen v. P.R.T. Co., 300 Pa. 451; Van Zandt v. R.R., 248 Pa. 276.
C. Brewster Rhoads, with him Henry W. Balka, for appellee. -- Defendant was guilty of negligence.
Decedent was lawfully on premises of defendant: Van Zandt v. R.R., 248 Pa. 276; Chews v. P.R.T. Co., 90 Pa.Super. 155; Bardis v. R.R., 267 Pa. 352; Brague v. Rys., 192 Pa. 242; Phila. & Reading R.R. v. Hummell, 44 Pa. 375; Gray v. R.R., 293 Pa. 28.
Decedent was not guilty of contributory negligence: Giles v. Bennett, 298 Pa. 158; Bass v. R.R., 303 Pa. 382; Bardis v. Ry., 267 Pa. 353; Kilgallen v. Transit Co., 300 Pa. 451; Reed v. R.R., 243 Pa. 562.
Before FRAZER, C.J., SIMPSON, KEPHART, SCHAFFER, MAXEY and DREW, JJ.
A company in carrying out its contract with defendant to paint the structure of the Frankfort Elevated Railroad, operated by defendant, employed several painters and cleaners. Among the latter was plaintiff's husband, Louis Simon. It was his duty to prepare the steel surface for the paint by scraping off the old paint. On November 19, 1929, Simon began work at 8 a.m. near Torresdale Station and about an hour and a half later he was struck and killed by a northbound elevated train.
The elevated railroad at this point has both a northbound and southbound track. East of the northbound track there is a cat walk 2 feet 4 inches wide and three feet above the tracks. The distance between the east rail and a plumb line from the westerly edge of the cat walk is 2 feet 8 inches. The decedent was seen on the tracks half an hour before and also a few seconds before the fatality. On the latter occasion an elevated train was approaching from the south. A man claiming to be eyewitness of the accident testified that Simon came from the west side of the tracks to the east side with a bucket in his hand and started to get up on the cat walk, that the train was one hundred or more feet away from Simon at the time and "coming along slowly" and "picked up speed" when it was about thirty or thirty-five feet away. This witness further testified that at the time Simon was struck he was in the cat walk, that his "right leg was down and as the right leg came up the front of the car caught the leg." Simon's body was twisted around, he fell down on the track and several trucks passed over him and fatal injuries resulted.
The decedent had not been engaged in work on the track surface but on the structure underneath the tracks. Whenever Simon and his fellow employees had to change their working location or move the scaffolding they were in the habit, so it was claimed, of using the lattice work alongside the elevated structure on which to climb up onto the tracks and they would walk along the cat walk and lower themselves to the new location. Witnesses for defendant testified that orders were given daily that none of the employees on the painting job were to go up on the tracks on pain of dismissal and that it was not necessary for the workmen to go up there to move the scaffolding or to change their locations as the work progressed, because other means for the accomplishment of this purpose had been provided.
In the contract between the defendant and the company under which the work in question was being done it was provided "The company will furnish, without cost to contractor, a necessary watchman and flagman to give warning of approaching trains, when contractor's forces are working within the areas occupied by moving trains." There was no watchman on duty at the time and place of the accident under review. The defendant's theory is that a watchman was not required at that point because no workmen were engaged within the actual areas occupied by moving trains. The motorman of the train which struck Simon testified he had operated on this line for some time and he knew painting was in progress.
Defendant contended there was not sufficient evidence of its negligence and that the evidence showed Simon himself was guilty of contributory negligence as a matter of law. The case was submitted to the jury and verdict was returned in the sum of $10,000. Subsequently a motion for judgment n.o.v. was filed. This motion was dismissed and judgment was entered upon the verdict. The case came before us on an appeal from the refusal to enter judgment n.o.v.
The plaintiff must, in considering this motion, be given the benefit of every fact and inference of fact pertaining to the issue involved which may reasonably be deduced from the evidence: Guilinger v. P.R.R., 304 Pa. 140. We agree with the court below that there was evidence worthy of submission to the jury and from which the jury was justified in finding the motorman was guilty of negligence. There is a basis for the inference that the motorman saw decedent on the track, slowed down his car to avoid hitting him and then when he thought decedent had reached a point of safety permitted the train to resume its speed. Considering that a human life was at stake, the motorman, if plaintiff's evidence is to be credited, clearly showed want of care under the circumstances. Though the testimony as to the slowing down of the car and its resumption of speed was given by only one witness, the court was justified in submitting this testimony to the jury. There were also circumstances corroborative of this one witness's testimony.
It is true the motorman testified that the first time he saw Simon was "when an object backed out from underneath the cat walk" and at that time he "had full power on" his train of six cars. When he saw this object he said he threw the power off and applied the emergency brake. The motorman testified further that the decedent was about 65 or 70 feet ahead of him when he first saw him. It is undisputed that the body of the...
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