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February 28, 1949


The opinion of the court was delivered by: MURPHY

Federal jurisdiction is based on diversity of citizenship; the operative facts occurred in this district; the substantive law of Pennsylvania therefore controls. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487.

 In considering the motion to set aside the verdict we view the testimony in the light most favorable to the plaintiff, including every reasonable inference fairly deducible therefrom. Applying such a test, was there substantial evidence to sustain the verdict? Was defendant responsible as a matter of law?

 The jury was warranted in finding that at about 2:00 a.m. while plaintiff was riding as a passenger for hire in one of defendant's taxicabs, sitting on the front seat beside defendant's driver, and proceeding in the direction of his requested destination, he was struck a blow on the top of his head which rendered him unconscious. There was no one else in the cab but plaintiff and the driver. There was nothing in the evidence to indicate that the blow was delivered by a third person or that the injury resulted from any object outside the cab.

 At 2:23 a.m. the cab and driver arrived at defendant's office, a few doors from plaintiff's requested destination, and 'reported in' to defendant's night dispatcher. No report was made of any accident, or of any damage to or defect in the cab. The driver worked until 7:00 a.m., the end of his shift, and in accounting to defendant for the fares collected included a sum purporting to represent the fare of the plaintiff. About 10:00 a.m. the same morning plaintiff was found lying unconscious, suffering from numerous injuries about the head, in a field in the vicinity of the place from which plaintiff had left when he entered the cab. He was removed to a hospital and did not regain consciousness for four days.

 That evening the driver worked driving defendant's cab. At 2:15 a.m. the following morning he was found unconscious and upon removal to a hospital was pronounced dead, the cause of death being two gunshot wounds in the head, the result of either violence or suicide.

 Plaintiff did not see the blow struck and, therefore, could not tell precisely who or what struck him. He obviously could not describe the cause of the other head injuries, nor account for his being found in the field.

 In Bickley v. Philadelphia & Reading Ry. Co., 257 Pa. 369, 101 A. 654, the plaintiff was struck a blow on the head while entering one of the defendant's railroad cars. The court said 257 page 375, 101 page 656, 'The plaintiff being a passenger, * * * the circumstances raised a presumption of negligence on the part of the defendant company which it was required to rebut. A common carrier must exercise the highest degree of care, vigilance, and precaution in the transportation of passengers, and a legal presumption of negligence arises, casting upon the carrier the onus of disproving it, when an injury to a passenger is caused by a defect in the road, cars, or any other appliance, or by a want of diligence or care in the carrier or its employees, or by any other thing which the carrier can and ought to control as a part of its duty to carry passengers safely. This is the rule established by our decisions. Meier v. Pennsylvania R.R. Co., 64 Pa. 225, 3 Am.Rep. 581; Niebalski v. Pennsylvania R.R. Co., 249 Pa. 530, 94 A. 1097 (Ann. Cas. 1917C, 632); Fern v. Pennsylvania R.R. Co., 250 Pa. 487, 95 A. 590.' And further, 257 page 376, 101 page 656, 'It is immaterial that the injury was caused by an unidentified object, as the place and circumstances of the accident show that it resulted from the failure to exercise the care required of the carrier to protect the passengers. There is no ground for a suspicion even that the blow received by the plaintiff was from an object cast from outside the car; on the other hand, it is obvious that the object which caused the plaintiff's injury fell from the ceiling of the car platform, or that the injury was inflicted by a tool or other object in the hands of the man while engaged at his work. * * * The evidence in the case shows that the injury was due either to a defect in the car or some appliance thereof or to something done or omitted in the conduct and management of the business, and therefore raises a presumption of negligence on the part of the defendant carrier.'

 This rebuttable presumption of negligence has the same probative force as if established by direct evidence. It stands as a fact except as overcome by testimony produced by defendant. The carrier could relieve itself from responsibility by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent. There are times when the uncontradicted facts may so clearly negative any idea of negligence so as to justify the court in so declaring as a matter of law. That was, however, not the situation here. Defendant offered no evidence whatsoever to account for plaintiff's injuries. Whether or not the presumption of negligence was overcome, and the determination of defendant's responsibility, was for the jury. Meier v. Pennsylvania R.R. Co., 64 Pa. 225 at page 230, 3 Am.Rep. 581; Shaughnessy v. Director General etc., 274 Pa. 413 at page 416, 118 A. 390, 23 A.L.R. 1211; Doud v. Hines etc., 269 Pa. 182, 112 A. 528; Henry, Pennsylvania Trial Evidence, 3d Ed., § 400, p. 604.

 See Lake Shore & Michigan Southern Ry. Co. v. Rosenzweig, 113 Pa. 519 at pages 540, 541, 6 A. 545, 550: 'If he was knocked down by a blow in his rear, which rendered him unconscious, it does not follow that because he cannot tell what struck him, that the jury may not find the fact that his injury was the direct consequence of a particular act.' Accord: Lukon v. Pennsylvania R. Co., 3 Cir., 1942, 131 F.2d 327 at page 329; Commonwealth v. Smith, 135 Pa.Super. 174, 5 A.2d 383; Young v. Yellow Cab Co., 118 Pa.Super. 495, 499, 180 A. 63.

 In the light of the foregoing, the jury was warranted in inferring, and in view of the verdict we must assume, did infer, that plaintiff's injuries were the result either of some defect in defendant's cab or of an assault upon the plaintiff by defendant's driver. The jury was also warranted in finding that plaintiff was found in the field because defendant's driver did not deliver him safely to his requested destination.

 Defendant contends that plaintiff's injuries were so severe that they were the result of a wilful and malicious attack, and that if the driver perpetrated such an assault upon the plaintiff he was, while so acting, not engaged in the line of his duty or the scope of his employment, but was instead on what, by one of the drolleries of the law, is termed a 'frolic of his own'.

 Assuming arguendo that defendant's driver committed a wilful and malicious assault upon the plaintiff, the situation would be one where a taxicab company, a common carrier, entrusted the safe carriage of plaintiff, a passenger for hire, to one of its drivers; and thereafter the driver committed an unprovoked and wilful assault upon the passenger while he was being transported and while the driver was engaged in executing the contract of carriage.

 That the carrier would be liable for a passenger's injuries thus sustained is ruled by Artherholt v. Erie Elec. Motor Co., 27 Pa.Super 141. See comment thereon in Greb v. Pennsylvania R.R. Co., 41 Pa.Super. 61 at page 67, both opinions by President Judge Rice; in Durando v. Philadelphia Rapid Transit Co., 80 Pa.Super. 65 at page 67, and Snow v. Philadelphia Rapid Transit Co., 84 Pa.Super. 236 at page 238, opinions by then Judge, now Mr. Justice Linn of the Supreme Court of Pennsylvania; and in Cherillo v. Steinberg, 118 Pa.Super 485 at pages 493, 494, 180 A. 115, opinion by President Judge Keller. In addition the Artherholt case was cited with approval and followed ...

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