Summary
In DeMarino v. B. O.R.R. Co., 349 Pa. 314, 36 A.2d 784, a reduction of the verdict of $5,000 to $3,000 was approved by the Supreme Court.
Summary of this case from Walker v. DavisOpinion
March 24, 1944.
April 11, 1944.
Negligence — Automobiles — Railroads — Evidence — Contributory negligence.
1. In an action for injuries sustained by plaintiff when the automobile he was driving was struck by defendant's train at a railroad crossing, in which it appeared, inter alia, that the collision occurred on a rainy, foggy night; that, as plaintiff approached the crossing he saw the blinker lights flashing, heard a whistle and came to a stop; that, after a train had passed, the blinker lights went out and plaintiff, after looking to left and right, proceeded forward, continuing to look; that a stationary train on the second track partially obscured his vision; and that he was struck when he had nearly cleared the third track; it was Held that the questions of negligence and contributory negligence were for the jury. [314-17]
Practice — Verdict — Excessive — Remittitur — Verdict for more than amount claimed — Amendments.
2. Where it appeared that the action had been brought by plaintiff to recover the sum of $3,000 damages; that the jury had brought in a verdict of $5,000; that plaintiff did not seek to amend his statement of claim to conform to the amount of the verdict; and that the evidence concerning injuries did not support a verdict of more than $3,000; it was Held that an order requiring plaintiff to remit all of the verdict over that amount or suffer a new trial was properly entered. [317]
Argued March 24, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 57, March T., 1944, from judgment of C. P., Allegheny Co., Jan. T., 1943, No. 259, in case of Nicholas DeMarino v. The Baltimore and Ohio Railroad Company. Judgment affirmed; reargument refused May 25, 1944.
Trespass for personal injuries.
The facts are stated in the opinion by McNAUGHER, J., of the court below, as follows:
In a trespass action for personal injuries the plaintiff recovered a verdict for $5,000.00 and the defendant has filed motions for judgment non obstante veredicto and a new trial.
About midnight on November 1, 1940, the plaintiff was driving his automobile from West Newton to his home in McKeesport and in the course of traversing the Newman Crossing in West Newton he was injured when the rear of the automobile was struck by a train of the defendant.
There is only one question on the motion for a new trial that requires consideration and that has to do with the amount of the verdict. Since all other points relate to the motion for judgment non obstante veredicto, the references which we make to testimony concerning the happening of the accident will be those helpful to the plaintiff.
It was raining at the time of the collision and the night was dark and foggy. As the plaintiff approached the crossing he saw red blinker lights flashing alternately to warn users of the crossing and he heard a whistle. He came to a stop some fifteen feet back of the blinker lights and after a short interval a train, coming from his left on the second track, passed over the crossing. Both windows of his automobile were open. After the last car of the train had completed the crossing, the blinker lights went out and the plaintiff, after looking to his right and left, proceeded forward. He observed to his right on the first track, which was a siding, the outline of some stationary boxcars about thirty feet distant. He continued to look in both directions as he proceeded in low gear at a speed between three and five miles per hour. The crossing was very rough. When he reached the first track he looked to his right and left and listened. He continued to look in both directions in crossing the second track and as he was coming toward the third track he heard for the first time the approach of a train and then saw to his right "a glaring headlight coming toward me through the fog" (page 7). He also testified that he had heard no whistle or warning sound beforehand. With the train then close up on him he became confused and increased the speed of the automobile and had nearly cleared the third track when the collision took place.
We think the case was for the jury both on the question of negligence and contributory negligence. The situation here is at some points strikingly similar to that presented in Sanders v. Pennsylvania Railroad Co., 336 Pa. 424, where the plaintiff relied upon testimony that blinker lights were not working, that no audible warning was given from the locomotive, and that vision was obscured by haze and fog. The court said, page 427: "This is not a case where a vehicle is struck immediately upon entering upon the rail, nor where there is a clear view of the track for a considerable distance and therefore a person crossing it must have seen an oncoming train had he looked as required by law. Here, the weather conditions are alleged to have reduced the visibility to a distance which a train, traveling at the speed at which the one here involved was operated, would have traversed in five seconds, and therefore it cannot be said to have been impossible or even improbable that the train was beyond the range of vision of plaintiff at the time he started across the southbound track. Under such circumstances the doctrine of the futility of testimony opposed to undisputed physical facts is inapplicable; Frank v. Reading Co., 297 Pa. 233, 239.
"The responsibility of decision in this litigation lay with the jury. The court could not have assumed it without overstepping the bounds of its legitimate functions."
Whether or not the plaintiff undertook to cross while the train on the second track was obscuring his vision along the third track was a question for the jury. If it believed that he was driving at only three miles an hour, its conclusion would be that several seconds elapsed before he reached the second track. It would also consider whether the passing train or fog cut off the plaintiff's view.
Counsel for the defendant contends that there was no positive evidence of failure of the defendant to give audible warning of the approach of the train. But as has already been noted, the plaintiff at one point testified that the automobile windows were open and that he listened, and, at another, that the first audible warning which reached him was when the automobile was between the second and third tracks and he heard the noise of the train itself as its headlight emerged through the fog. This was sufficient.
The remaining question is presented thus:
"This action having been brought by the plaintiff to recover the sum of $3,000.00 damages, is not the plaintiff required either to amend his statement of claim to conform to the verdict of $5,000.00 brought in by the jury, or suffer a new trial because the verdict is in excess of the amount claimed in the statement of claim?"
Counsel for the plaintiff suggests that suit was brought for $3,000.00 in order to prevent an application for its removal to the Federal Court because of diversity of citizenship. The verdict could not stand without an amendment and if an amendment were sought and allowed then the defendant would be entitled to have the case removed. But the plaintiff is not asking for an amendment and we are of the opinion, as was the trial judge at the time it was rendered, that the verdict is excessive. We have given consideration to the evidence concerning injuries and are of the opinion that it would not support a verdict of more than $3,000.00. We will therefore enter an order in the alternative requiring the plaintiff to remit all of the verdict over that amount or suffer a new trial.
Defendant appealed.
Vincent M. Casey, of Margiotti, Pugliese Casey, for appellant. J. Thomas Hoffman, with him David S. Palkovitz, for appellee.
The judgment of the court below in the above-entitled case is affirmed on the opinion of Judge McNAUGHER; costs to be paid by appellant.