Zaltouski v. Scranton Railway Company

• Decision Date: 20 March 1933
• Docket Number: 105
• Citation: 310 Pa. 531,165 A. 847
• Parties: Zaltouski et ux., Appellants, v. Scranton Railway Company
• Court: Pennsylvania Supreme Court

165 A. 847

310 Pa. 531

Zaltouski et ux., Appellants, v. Scranton Railway Company

No. 105

Supreme Court of Pennsylvania

March 20, 1933

Argued January 23, 1933

Appeal, No. 105, Jan. T., 1933, by plaintiffs, from judgment of C.P. Lackawanna Co., Jan. T., 1930, No. 1606, for defendant, on the whole record, in case of Mary Zaltouski and Anthony Zaltouski, her husband, and Anthony Zaltouski, in his own right, v. Scranton Railway Company. Affirmed.

Trespass for personal injuries. Before LEWIS, J.

The opinion of the Supreme Court states the facts.

Rule for judgment for defendant on whole record made absolute. Plaintiffs appealed.

Error assigned, inter alia, was entry of judgment for defendant on whole record, quoting motion, rule to show cause and order.

Judgment affirmed.

George E. Ellis, with him Frank J. McDonnell, for appellants. -- The accident and circumstances raised a legal presumption of negligence: Hager v. R.R., 261 Pa. 359; Bickley v. R.R., 257 Pa. 369; Brooks v. R.R. Co., 218 Pa. 1; Doud v. Hines, 269 Pa. 182; Mack v Ry., 247 Pa. 598; Hughes v. Transportation Co., 300 Pa. 55; Orms v. Bus Co., 300 Pa. 475.

Walter W. Harris, of O'Malley, Hill, Harris & Harris, for appellee. -- The mere happening of the accident was not sufficient to establish negligence: Welsh v. House Wrecking Co., 306 Pa. 228; Wilkerson v. Ry., 309 Pa. 381.

Before FRAZER, C.J., KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.

OPINION

MR. JUSTICE DREW:

While a passenger on one of defendant's street cars, Mary Zaltouski was injured when the rear of a coal truck skidded into the side of the car. She and her husband brought this action against the carrier, Scranton Railway Company. At the trial the jury disagreed, and later the court in banc entered judgment for the defendant on the whole record, under the Act of April 20, 1911, P.L. 70. From the judgment thus entered, plaintiffs appealed.

In reviewing this record we have in mind that all facts, and reasonable inferences from them, favorable to plaintiffs, must be accepted as true (Derrick v. Harwood Electric Co., 268 Pa. 136; Martin v. Lipschitz, 299 Pa. 211), and that judgment should have been entered on the whole record only if binding instructions should have been given to the jury: Derrick v. Harwood Electric Co., supra.

This accident occurred in Scranton, on North Main Avenue, near the Marvine Crossing, about seven o'clock on the evening of December 18, 1928. The street is 25 feet wide, and straight on each side of the crossing for several hundred feet; there is a single car track in the center, with a clearance of approximately ten feet on each side. Mrs. Zaltouski testified that she was sitting on the left side of the car, in the second seat from the front, and that as the car crossed the railroad tracks at the crossing, something smashed against it, shattering several windows on the left side, including the one beside her, and throwing her to the floor. The other witnesses for plaintiffs added nothing to Mrs. Zaltouski's account of the accident, except that the object which hit the car was a coal truck, and that both vehicles stopped within a few feet after the crash. She gave no account of how the accident occurred, nor did any of plaintiffs' witnesses. The sum total of plaintiffs' case was that there was a collision and that Mrs. Zaltouski was hurt. There was nothing to show negligence in the operation of the street car.

Plaintiffs argue that defendant, as a common carrier, owed to its passengers the highest degree of care and diligence, and that when it was shown that Mrs. Zaltouski was injured, without fault on her part, while a passenger in defendant's street car, a presumption arose that the accident was caused by its negligence. While it is true that carriers are held to a high degree of care, we cannot assent to plaintiffs' contention that the mere fact of injury to a passenger raises a presumption of want of care on the part of the carrier. It is well settled that for this presumption to arise it must appear that the accident was caused by something connected with the means or appliances of transportation, such as defective tracks, cars, machinery, or motive power: Ry Co. v. Gibson, 96 Pa. 83; P.R.R. v. MacKinney, 124 Pa. 462; Blew v. P.R.T. Co., 227 Pa. 319; Swink v. P.R.T. Co.,...