Sutherland v. Auch Inter-Borough Transit Company, Civ. A. No. 70-1175.

• Decision Date: 08 November 1973
• Docket Number: Civ. A. No. 70-1175.
• Citation: 366 F. Supp. 127
• Parties: Donald SUTHERLAND and Phyllis Brynjulson Sutherland, Husband and Wife v. AUCH INTER-BOROUGH TRANSIT COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

366 F. Supp. 127

Donald SUTHERLAND and Phyllis Brynjulson Sutherland, Husband and Wife v. AUCH INTER-BOROUGH TRANSIT COMPANY.

Civ. A. No. 70-1175.

United States District Court, E. D. Pennsylvania.

November 8, 1973.

James E. Beasley, Beasley, Hewson, Casey, Kraft & Colleran, Philadelphia, Pa., for plaintiffs.

Carl S. Tannenbaum, Takiff, Bolger & Picker, Philadelphia, Pa., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

NEWCOMER, District Judge.

1. Plaintiffs Donald Sutherland and Phyllis Brynjulson Sutherland, husband and wife, were citizens of the State of New York residing at 126 Jamesville Avenue, Syracuse, New York at the time this action was filed.

2. Defendant Auch Inter-Borough Transit Company (hereafter Auch) is a corporation organized and existing under the laws of Pennsylvania with its principal

place of business located at 1516 Fayette Street, Conshohocken, Pennsylvania.

3. The amount in controversy exceeds the sum of $10,000 exclusive of costs.

4. On May 11, 1968, plaintiff Phyllis Brynjulson Sutherland, hereafter plaintiff Sutherland) was riding in a bus owned by the defendant Auch and operated by William Neal, an Auch employee, within the scope of his employment.

5. On May 11, 1968, at approximately 5 p. m., the bus in which plaintiff Sutherland was riding was involved in an accident which accident developed through the following sequence of events:

(a) At about 5 p. m. the bus was proceeding south on Fayette Street in the Borough of Conshohocken.

(b) The street was wet at 5 p. m. because it had been and was raining prior to and at the time of the accident.

(c) After the bus had passed by 7th Avenue, the light at 6th Avenue changed from green to yellow for traffic proceeding south on Fayette Street.

(d) At the time of the light change, William Neal, the driver of the bus, applied the brakes in order to bring the bus to a stop at 6th Avenue.

(e) Upon application of the brakes, the bus skidded out of control, crossed the center line of Fayette Street between 7th and 6th Avenues, and crashed into two automobiles which were parked along the left hand curb facing north.

6. Plaintiff Sutherland was warned of the impending crash and attempted to brace herself by pressing her feet against a wheel hump cover which cover was beneath the bench seat in front of the seat in which she was sitting.

7. Upon impact, plaintiff Sutherland was forced into an extreme crouch position causing her knees to become locked.

8. On May 11, 1968, plaintiff Sutherland was taken to Bryn Mawr Hospital in a rescue vehicle where she complained of hip and leg injuries.

9. On May 12, 1968, plaintiff Sutherland again was taken to Bryn Mawr Hospital where her right hip and leg were x-rayed.

10. On May 12, 1968, plaintiff Sutherland performed certain pieces from the work Carmina Burana in a concert at Agnes Irwin School from a wheelchair.

11. Defendant Auch, through its agent, William Neal, owed a duty to plaintiff Sutherland to keep the bus in which she was riding as a passenger under proper control and to exercise the highest degree of care to make her journey safe.

12. The failure of defendant Auch, through its agent, William Neal, to maintain proper control of the bus in which plaintiff was riding constituted a breach of a duty owed to plaintiff Sutherland.

13. The failure of defendant Auch, through its agent, William Neal, to exercise the highest degree of care possible to make plaintiff Sutherland's journey safe constituted a breach of a duty owed to plaintiff Sutherland.

14. The breaches of the above duties by defendant Auch were both substantial factors in bringing about the accident in question.

15. The right knee and right hip injuries were the proximate result of the May 11, 1968 accident.

DISCUSSION RE LIABILITY

This is a diversity action and the substantive law of Pennsylvania is controlling. It appears clear that the defendant Auch through its agent, William Neal, was negligent in failing to keep the bus in which plaintiff was a passenger under proper control in view of the weather and road conditions prevailing on May 11, 1968. Under Pennsylvania law, a common carrier of passengers for hire owes "the highest degree of care as human judgment and foresight are capable of, to make a passenger's journey safe." Scott v. Eastern Air Lines, Inc., 399 F.2d 14 (3rd Cir. 1968). See also, Schulz v. Reading Transportation Company, 354 Pa. 373, 47 A.2d 213 (1946). Also, the defendant has failed to satisfactorily explain how the bus skidded from one side of the street to the other after the brakes were applied by the driver William Neal.

This accident was also the proximate result of defendant's negligence and both sides agree that plaintiff Sutherland was in no way contributorily negligent.

FINDINGS OF FACT RE INJURIES AND MEDICAL TREATMENT

1. Subsequent to the accident the plaintiff was admitted to the emergency room at the Bryn Mawr Hospital at approximately 6:00 p. m. on May 11, 1968.

2. Upon admission to the emergency room at that time the plaintiff complained of trauma from right thigh injury, right hand injury and right shoulder injury and the doctor on examination could find "no definite tenderness" in the right hip and back and, in addition, x-rays of the right hip, pelvis and spine were negative.

3. Plaintiff was admitted to the emergency room of Bryn Mawr Hospital a second time on May 12, 1968, with complaints of trauma from back injury.

4. On the second admission to Bryn Mawr Hospital emergency room, x-rays of the lumbar spine were negative but examination by Dr. Snedden revealed a positive psoas test with diagnosis of synovitis of the right hip.

5. Neither the Bryn Mawr Hospital emergency room record of May 11, 1968, nor the record of May 12, 1968, indicates any complaints of pain in the right knee or diagnosis of an injury to the right knee.

6. On May 13, 1968, the plaintiff was examined and treated by David G. Murray, M. D., in Syracuse, New York.

7. Dr. Murray's examination of plaintiff on May 13, 1968, as reported in his office summary for May 13, 1968, indicated that the plaintiff's right hip "can be put through essentially a full range of motion without crepitation or discomfort as long as muscles are not tightened."

8. Dr. Murray's diagnosis as noted in his office summary for May 13, 1968, was "generalized acute strain right leg."

9. Plaintiff continued to be treated intermittently by Dr. Murray until October 14, 1969, when Dr. Murray's examination as noted in his report of October 29, 1969, revealed "a full range of motion with no growth deformity and x-rays of her knees taken on October 14, 1969, were within normal limits."

10. Plaintiff's next visit to Dr. Murray was a follow-up examination on April 16, 1970.

11. Dr. Murray's diagnosis as contained in his report of April 21, 1970, was "aggravation of mildly damaged muscular and tendinous tissue dating back to May 11, 1968."

12. Plaintiff's next visit to Dr. Murray was on November 10, 1970.

13. Dr. Murray's examination of November 10, 1970, as noted in his office summary for November 10, 1970, revealed "tenderness over the trochantery bersa and x-rays are negative."

14. Dr. Murray's diagnosis as noted in his report of November 13, 1970, was "post-traumatic trochanteric bursitis."

15. Plaintiff was examined on behalf of the defendant by Richard K. Vosburgh, M. D., on March 27, 1970.

16. At that time plaintiff reported to Dr. Vosburgh that her right hip complaint was better.

17. Plaintiff's complaints to Dr. Vosburgh were limited to swelling of both knees after prolonged standing with the swelling subsiding overnight.

18. Dr. Vosburgh's examination revealed (1) no impairment of gait, i. e., no limp; (2) normal heel and toe stand; (3) no fluid in either knee; (4) no crepitus or clicking in either knee; (5) no thickening of the synovium in either knee; (6) negative McMurray tests for torn medial meniscus in either knee; (7) negative tests for torn ligaments in either knee; (8) complaint of pain on palpation over the outer surface of the right femur in its upper third; (9) no atrophy of either thigh or leg; (10) no tenderness of the patella or knee cap of either knee or percussion; (11) both knees were equal in all regards; (12) plaintiff complained of pain on deep knee bend.

19. Dr. Vosburgh's examination of plaintiff was negative for any injury to the right hip or right knee.

20. Dr. Vosburgh's examination was positive for complaints of pain in the knees on deep knee bending only.

21. Dr. Vosburgh's examination was positive for complaints of pain of the hip on passive motion only.

22. Dr. Vosburgh's examination was positive for complaints of pain of the upper third of the right femur.

23. Dr. Vosburgh's diagnosis was that the plaintiff was recovered from any injuries to her right hip and right knee which may have been sustained in the accident of May 11, 1968.

24. Plaintiff came under the care of Jere Daum, M. D., on October 7, 1971.

25. Plaintiff did not call Dr. Daum to testify at the trial.

26. Plaintiff was examined on behalf of defendant by Martin L. Beller, M. D., on May 30, 1972.

27. Plaintiff told Dr. Beller that she receives cortisone shots in the right anterior-superior illiac spine.

28. Plaintiff told Dr. Beller that she has pain in the right anterior illiac crest area and sometimes in the right groin.

29. Dr. Beller's examination revealed (1) plaintiff's heel to toe gait was normal and she was able to rise on heels and toes; (2) no atrophy in any part of either leg including the thigh, knee, calf and ankle of both legs; (3) bending of both knees was normal; (4) hip movement in both hips normal; (5) external rotation of right hip in position of 90 degrees flexion causes complaint of pain in right anterior-superior illiac spine area and over the greater trochanter of the right femur; (6) tenderness over right greater trochanter; (7) tenderness right anterior-superior spine; (8) gait and...