Opinion
October 22, 1930.
February 27, 1931.
Negligence — Street car — Passenger — Sudden stopping of car — Personal injury — Non-suit.
In an action of trespass by a passenger of a trolley car to recover for personal injuries sustained as a result of the sudden stopping of the car, the plaintiff's testimony established that she was standing in the car and that it came to a sudden, violent and unusual stop in the middle of a block. She alleged that three or four passengers fell on her and that others fell on the floor. The motorman and conductor of the trolley testified that the sudden stop was made in an effort to avoid a collision with a truck but they neither disclosed the speed of the car or the truck, nor the distance the car was away from the truck at the time it entered the track.
Held: (1) That the court below did not err in requiring the defendant to explain the cause for the sudden and unusual manner in stopping the car, (2) that the explanation proffered by the defendant was not sufficient to take the matter from the jury and require the court to rule that the plaintiff had no cause of action, and (3) that a judgment for the plaintiff will be affirmed.
Appeals Nos. 270 and 271, October T., 1930, by defendant from judgment of M.C., Philadelphia County, June T., 1927, No. 562, in the case of Mildred DiPaolo and Charles DiPaolo v. Philadelphia Rapid Transit Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Trespass to recover for personal injuries. Before KNOWLES, J.
The facts are stated in the opinion of the Superior Court.
Verdict for Mildred DiPaolo in the sum of $600 and for Charles DiPaolo in the sum of $400 and judgments entered thereon. Defendant appealed.
Error assigned, among others, was refusal of defendant's motion for judgment non obstante veredicto.
Samuel H. Coplin, for appellant.
Graham, Garaguso Foley, for appellees.
Argued October 22, 1930.
Mrs. Mildred DiPaolo boarded a trolley car of the defendant company at 15th Street and Girard Avenue in the city of Philadelphia. She got on in the front of the car which was crowded and went past the conductor in the center of the car, paying her fare. She then took her position in the enclosure just opposite the conductor.
The car proceeded south on Fifteenth Street and when a block or two south of Girard Avenue, at a point which was not a regular stop, but was in the middle of the block, came to a sudden, violent and unusual stop. The force was so great as to throw the plaintiff against the iron rail which was on the right hand side and she stated, "three or four others fell on top of me and not only that, three or four persons in the car fell on the floor and fell on top of each other." She was holding on to a strap and the force pulled her hand off the strap. As a result the plaintiff was injured. The jury returned a verdict in favor of Mrs. DiPaolo and her husband.
The question is, was there sufficient evidence to take the case to the jury, or should a nonsuit have been entered? A motion for judgment n.o.v. was refused.
There seems to be no doubt that this was an unusual motion of the car. The effect upon the plaintiff and upon some of the other passengers was such as would not result from the ordinary and proper operation of the car. It would, therefore, seem that it would be in order for those who were running the car to show what the cause of the sudden stop was. The unusual manner of stopping calls for an explanation by the defendant. In Tilton v. Philadelphia Rapid Transit Co., 231 Pa. 63, we find: "If sudden and violent stop was made necessary by something which occurred outside of the car, and which was beyond the control of the motorman, and in his judgment made it needful to stop abruptly, rather than incur the risk of otherwise causing more serious injury, that fact should have been made to appear."
The question therefore is whether the explanation offered by the defendant presented such a clear situation as to take the matter from the jury and compel the court to decide that there was no negligence. The motorman and the conductor of the car in question were called. They furnished no testimony as to the speed of the trolley car nor of the truck. They did not tell the distance the trolley car was away from the truck at the time the truck entered the track. The motorman said that "my distance to stop was too short." The only other witness produced by the defendant testified that in response to the question, "Do you know how far away the trolley car was when the truck entered the tracks?" A. "I guess a few steps when the truck entered the tracks." When he was asked, "Approximately how many feet was it?" he answered, "Well, about six feet." He was asked again by the attorney for the defendant: "About how far away was the truck from the trolley car when the truck was at the west curb line?" "A. About six feet, I will say." Again, "How far away was the trolley car from the truck when the truck was at the curb?" and after some parley, the witness said, "About ten feet." The lower court we think properly commented on this testimony as follows: "The attorney for the defendant stated: `I feel the witness is a little bit confused.' Certainly, in view of this statement by the defendant's own counsel, in view of the witness' hesitations and his frequent use of the word `guess,' his credibility as to the happening of this collision is also for the jury."
The truck came out of a narrow street, but necessarily had to traverse the sidewalk and some portion of the street before it got to the track upon which the car was passing. The motorman tried to stop and applied his emergency brake, but he gave no evidence as to when he saw the truck coming from behind whatever obstruction there might be before it arrived at the houseline. We have no information as to the speed of the truck, and as stated before, as to the speed of the trolley. There was some testimony favorable to the defendant to the fact that the trolley car stopped shortly after the collision, but we feel that the explanation given by the company was not so full as to exclude the question of negligence. Certainly the motorman of the car could have entered into greater detail as to the occurrence and it may be presumed that whatever circumstance favorable to the defendant surrounded the accident, would be disclosed. We think it clearly appears that the shock was violent and unusual and as stated before required an explanation from the company and that the explanation proffered by the company was not so full as to take the matter from the jury and require the court to rule that the plaintiff had no cause of action.
The judgment is affirmed.