Brennen v. Pittsburgh Rys. Co. , 323 Pa. 81 ( 1936 )

In my judgment it was proper to submit to the jury the question of defendant's negligence, and I think there was sufficient evidence to sustain the verdict. Therefore I dissent from the majority opinion entering judgment for defendant. I agree with it where it states that "if the motorman should have seen the boy, on or about to cross the track in front of him in time to stop his car before reaching him and negligently failed to observe him and ran the boy down, the company should respond in damages." There was evidence from which the jury could have found that way.

The jury having found a verdict for plaintiff, the evidence must be viewed in the light most favorable to him, and reasonable inferences must be drawn in favor of, and not against, his right to recover: Adams v. Gardiner, 306 Pa. 576,160 A. 589; Dempsey v. Cuneo Eastern Press Ink Co., 318 Pa. 557,179 A. 220.

The minor plaintiff, a boy a little more than twelve years of age, was walking with his twin brother in an easterly direction along a narrow cinder or dirt road parallel to and to the south of defendant's right of way, and in the same direction in which the trolley car which injured him was traveling. A space of 25 or 30 feet separated the road from the tracks. The boys proceeded some 200 feet along the road towards another unimproved highway which crossed at right angles and led immediately northward beyond the tracks. On the northeast corner of this crossing a truck waited to take them home. Obviously, as they neared the crossing, they veered to their left, towards the north, in order to cross the tracks diagonally to the truck. When they were still 30 feet, more or less, from the nearest track plaintiff looked and noticed the trolley standing motionless to take on passengers 230 or 240 feet away. The boys approached the tracks, and when ten feet from them plaintiff looked again and saw the trolley moving slowly towards them, still 200 feet away. He also saw an automobile approaching down the intersecting highway, across the trolley tracks. He watched the car, because he had to find out whether it would turn before reaching the trolley tracks or proceed across them. He continued towards the tracks, and had just entered them by two or three feet when the trolley car struck him on the left part of his back. His twin brother, slightly behind and to his right, escaped injury by jumping back.

The tracks ran in a straight line from the point where the trolley car stopped to where the accident occurred. It was daylight and the motorman had a clear view. If he had been attentive he would have seen the boys approaching the tracks and would naturally have inferred that they intended to cross them and he would have reduced his speed and have given warning, but he gave no warning by bell or otherwise. He continued on his way until the boy was struck and then he attempted to make a "quick stop." This rushing ahead with the boy thus in sight was, to my mind, negligence on the part of the motorman. "It is the duty of a motorman as his car moves forward to keep a constant watch of the cartway and track before him. To run down a small child in an unobstructed street in broad daylight is evidence of negligence, unless the child suddenly darts out into the track of the car. If the motorman failed to see the child, who was approaching the track in plain view, he was negligent, and if he saw the child in time to stop and failed to do so, he was equally negligent": Goldberg et al. v. P. R. T. Co., 299 Pa. 79,83, 149 A. 104. "Our decisions are uniform in holding that where, as here, the evidence is conflicting as to whether or not the motorman could have seen the child in time to prevent the accident, the case is for the jury": Quattrochi v.Pittsburgh Railways Co., 309 Pa. 377, 381, 164 A. 59.

This is not a case where the undisputed evidence is that a child suddenly darted upon the track in front of an approaching car as are the cases cited in the majority opinion and the cases cited in some of those cases. In such a situation, no negligence can be imputed to the motorman or driver for he is not legally bound to anticipate a "sudden movement" by a pedestrian. But when a motorman or driver sees, or by the exercise of vigilance could see and by the application of common sense would reasonably believe, that a boy was headed for a point on the car's track, a short distance before the moving car, he should exercise that care not to strike the boy which is dictated by normal humane instinct. There was some evidence that the trolley car was travelling, for at least a portion of this short distance, at between 30 and 35 miles an hour, but the testimony of the witness who gave this evidence is ruled out by the majority opinion with the statement that she was "entirely unreliable." I would not from the record so characterize this witness. A person does not have to own or drive a car to be able to judge the speed of a vehicle. Almost any intelligent person who is observant can give a fairly accurate opinion as to the speed of a moving street car or automobile. The jury is best fitted to weigh such person's testimony. There was no objection whatever to this witness's testimony on the ground of lack of competency, or on any other ground. Furthermore, I regard the speed of the street car as of minor importance. If it was running at an excessive rate of speed, that might, under the circumstances, be negligence. On the other hand, if it was running slowly, and the boy's intention to cross the tracks was obvious, or would have been obvious, to an attentive motorman, such a moderate speed makes the striking of the boy even more inexcusable.

This case was typically one for submission to a jury. I would accept the jury's finding as to the negligence of defendant's servant, but I would still further reduce the amount of the verdict in favor of the minor plaintiff, from the figure of $6,679 to which the court below reduced it from $8,500. I think that even the reduced figure of $6,679 was still somewhat excessive.