From Casetext: Smarter Legal Research

Zaltouski v. Scranton Ry. Co.

Supreme Court of Pennsylvania
Mar 20, 1933
165 A. 847 (Pa. 1933)

Summary

In Zaltouski v. Scranton Ry. Co., supra (310 Pa. 531), a truck skidded into the side of the trolley in which plaintiff was a passenger.

Summary of this case from Cook v. Philadelphia Rapid Transit Co.

Opinion

January 23, 1933.

March 20, 1933.

Negligence — Street railways — Passenger — Collision with truck — Presumption.

1. No presumption of negligence on the part of a common carrier arises from the mere fact of injury to a passenger. [534]

2. Such presumption arises only where it appears that the accident was caused by something connected with the means or appliances of transportation. [534]

3. Where a passenger in a street railway car is injured as the result of a collision between the street car and a truck, not under its management or control, the mere happening of the accident does not give rise to a presumption or even an inference of negligence on the part of the carrier. [534]

Judgments — Entry — Judgment for defendant on whole record — Binding instructions — Act of April 20, 1911, P. L. 70.

4. Judgment on the whole record, under the Act of April 20, 1911, P. L. 70, can be entered only if binding instructions should have been given to the jury. [533]

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

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.

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.


Argued January 23, 1933.


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., 277 Pa. 220; Zolden v. Traction Co., 94 Pa. Super. 191; see Orms v. Traction Bus Co., 300 Pa. 474. The mere happening of the collision between defendant's street car and a truck not under its control or management, which was all plaintiffs' witnesses testified to, did not give rise to a presumption or even an inference of negligence on the part of the carrier: Ry. Co. v. Gibson, supra; Blew v. P. R. T. Co., supra; Kurts v. P. R. T. Co., 244 Pa. 179; Welsh v. Jump House Wrecking Co., 306 Pa. 228; Wilkerson v. Pittsburgh Rys. Co., 309 Pa. 381; Zolden v. Traction Co., supra.

It is true that the failure of plaintiffs to establish negligence would not be fatal to their case, were there anything in the testimony offered by defendant which would justify an inference that the accident was caused by the negligence of defendant's motorman. But no such inference can be drawn from defendant's testimony. The witnesses who testified for defendant stated that the truck had successfully turned into the traffic lane at the side of the car track, where there was ample clearance, that it was proceeding in a course parallel to that of the car, and that it was entirely off the car track and the rear of the truck had passed the front of the street car, when the rear of the truck swerved against the side of the car. On this testimony, there was nothing the motorman could have done to avoid the collision; no act or omission on his part contributed in any way to the occurrence of the accident. Since the car was running on a fixed track, it was impossible for it to move over and hit the truck. It is obvious that plaintiffs' case is not helped by defendant's evidence.

Judgment affirmed.


Summaries of

Zaltouski v. Scranton Ry. Co.

Supreme Court of Pennsylvania
Mar 20, 1933
165 A. 847 (Pa. 1933)

In Zaltouski v. Scranton Ry. Co., supra (310 Pa. 531), a truck skidded into the side of the trolley in which plaintiff was a passenger.

Summary of this case from Cook v. Philadelphia Rapid Transit Co.
Case details for

Zaltouski v. Scranton Ry. Co.

Case Details

Full title:Zaltouski et ux., Appellants, v. Scranton Railway Company

Court:Supreme Court of Pennsylvania

Date published: Mar 20, 1933

Citations

165 A. 847 (Pa. 1933)
165 A. 847

Citing Cases

Cook v. Philadelphia Rapid Transit Co.

Accepting the plaintiff's evidence as true, was it sufficient to establish the defendant's negligence? The…

Pedretti v. Pgh. Railways Co.

" (Emphasis supplied). See also: Zaltouski v. Scranton Railway Co., 310 Pa. 531, 534, 165 A. 847; Miller v.…