Bruce R. Martin, Dalzell, McFall, Pringle & Bredin, Pittsburgh, for appellant.
George P. Kountz, Van A. Barrickman, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Fine, JJ.
[ 166 Pa. Super. Page 539]
Plaintiff, in a trespass action, asked for damages for personal injuries caused her when broken glass from a window of defendant's coach, in which she was a passenger, entered her left eye. A jury returned a verdict of $1,150 for plaintiff. Defendant's motions for judgment n.o.v. and for a new trial were refused. This appeal by defendant followed.
Appellant contends that appellee was contributorily negligent as a matter of law; and that the charge of the court was so inadequate as to constitute fundamental error because the trial judge in his charge (1) failed to summarize the testimony, (2) did not define negligence or contributory negligence, (3) did not adequately instruct the jury concerning the burden of proof, (4) made no reference to the sharp conflict in the testimony, and
[ 166 Pa. Super. Page 540]
(5) misstated appellant's theory of the case and the law applicable thereto.
The evidence shows that on July 5, 1946, appellee was a passenger traveling on appellant's train from Youngstown, Ohio, to Pittsburgh. Appellee was seated in the third or fourth seat from the rear of the right side of the second car from the engine. The upper rear corner of the window was cracked and the window glass rattled in the frame. After leaving the Fort Wayne Station in Pittsburgh, the train switched to the left, from one track to another. As it did so the appellee noticed stones hitting the window. She raised the window and ascertained that they were being thrown from underneath the wheels of the engine. A few seconds after she lowered the window the train jolted and a piece of glass fell from the cracked portion of the window. This hit her on the head, and some entered her left eye. Immediately several stones came through part of the window, shattered it and showered appellee with glass. Appellee was corroborated by two fellow passengers. One witness, Yates, saw the stones thrown from beneath the engine wheels against the window. Witnesses Yates and Barrow saw a piece of glass fall from the cracked window and hit appellee in the eye. Witness Barrow saw at least one stone come through the window, which stone he identified at the trial.
Appellant's brakeman, in the same car, observed that the window glass was shattered by a stone that apparently came from outside the coach. According to appellant's witnesses the coach involved was eight cars behind the engine, and the breaking of the window by a stone occurred about a mile before the train reached the Fort Wayne or Federal Street Station. Appellant's doctor, who examined appellee at the Union Station, stated that appellee told him some boys threw rocks through the car window. Appellee denied making this statement.
[ 166 Pa. Super. Page 541]
Refusal to enter judgment n. o. v. was proper. Resolving all conflicts in the testimony in favor of appellee, viewing the evidence in a light most favorable to her, and giving her the benefit of all inferences and deductions reasonably to be made therefrom as we are required to do, Foley v. Reading Company, 348 Pa. 485, 35 A.2d 315; Russo v. Pittsburgh Railways Co., 164 Pa. Super. 396, 64 A.2d 666, it cannot be said as a matter of law that her conduct constituted contributory negligence. A plaintiff may not properly be declared guilty of contributory negligence as a matter of law unless the evidence is so clear in that regard that fair and reasonable individuals could not disagree as to its existence. Pessolano v. Philadelphia Transportation Co., 349 Pa. 73, 75, ...