only change is the difference in details as to the place of infliction on the right of way of the defendant. Rooney v. Maczko, supra.
I believe no need existed to amend the complaint, but if so, a new cause of action was not stated, and it would be proper to allow the amendment.
Did the Plaintiff Fail To Show a Duty on Defendant's Part to Maintain the Railway Crossing Either in His Pleadings or in His Proof?
What duty rested on the defendant to keep and maintain the crossing in a fit and suitable condition for pedestrian use?
Defendant relies upon Reed v. Allegheny County, 330 Pa. 300, 199 A. 187, which supports the view that where the railroad company holds the practical equivalent of a title in fee, and the easement of a right-of-way across the railroad is in the public, the duty of maintenance, in the absence of other facts or circumstances, rests upon the municipal corporation.
The issue raised in said case related to the liability between the county and the railroad, and in said proceedings the action was originally filed by the plaintiff against the county which brought the railroad upon the record as an additional defendant.
It was held that the primary liability for an accident arising from the defective maintenance of a crossing is ordinarily upon the municipality and whether the railroad company is liable depends upon the facts and circumstances in each particular case.
Such may be the case as between the railroad and the municipal corporation inter se. However, the case of DiBlasi, etc., v. Pennsylvania R.R. Co., 66 Pa.Dist.&Co., 234, affirmed 361 Pa. 181, 63 A.2d 70, develops the point that even though there is no statutory obligation on the part of the railroad to maintain a crossing, there is a common law duty owing to the public to keep the streets occupied by its tracks in good condition; that whatever rights and duties there may be regarding actual maintenance and repair of the highway as relating to each other, it in no way absolves them 'from the duty they owe to the public first.'
The right of way and tracks of the railroad were in the bed of a public street, and in the center of a great metropolis.
The public has a right to cross a highway without being restricted to intersections, and that right is not impaired by the presence of railroad tracks in the bed of a street. Moore et ux. v. Pennsylvania R. Co., 99 Pa. 301.
I believe that either from a statutory or common law basis a duty existed on the defendant railroad to keep the street occupied by its tracks in good condition for pedestrian use. DiBlasi, etc., v. Pennsylvania R.R. Co., supra.
Did the Court Err in Instructing the Jury Relative to Wanton Negligence?
Under the plaintiff's theory-
(1) the original act of negligence occurred at the crossing;
(2) the plaintiff's position on the tracks of the defendant was caused by the original negligence of the defendant; and
(3) the plaintiff was not a willing trespasser since he had no control over being placed in his position of danger.
It is not wanton negligence to fail to use care to discover the presence of an unanticipated trespasser on the defendant's right of way, or railroad track, but it is wanton negligence to fail to use ordinary and reasonable care to avoid injury to a trespasser after his presence has been ascertained. Frederick v. Philadelphia Rapid Transit Co., 337 Pa. 136, 10 A.2d 576; Enright v. Pittsburgh Junction R.R. Co., 198 Pa. 166, 169, 170, 47 A. 938, 53 L.R.A. 330; Pollack v. Pennsylvania R. Co., 210 Pa. 631, 633, 634, 60 A. 311; Petrowski v. Philadelphia & Reading Ry. Co., 263 Pa. 531, 536, 107 A. 381; Minute v. Philadelphia & Reading Ry. Co., 264 Pa. 93, 107 A. 662; Cover v. Hershey Transit Co., 290 Pa. 551, 557, 139 A. 266; Restatement of Torts, Sec. 336.
Unless the defendant is apprized of the plaintiff's presence, no duty in regard to his safety arises, but if the defendant is put on guard as to the plaintiff's presence, the latter immediately acquires the right to proper protection under the circumstances. Green v. Reading Co., 3 Cir., 183 F.2d 716.
Since under the testimony the jury could justifiably find the defendant was negligent in the maintenance of said crossing, and that as a result thereof the plaintiff became in an unconscious or dazed condition and placed on the tracks of the defendant some one hundred feet west of the crossing, it became obligatory for the Court to charge on wanton negligence.
Did the Court Err in Charging the Jury on Disfigurement and Mutilation When Such Was Not Pleaded or Supported by Evidence?
The complaint sets forth, inter alia, 'that the right leg of the plaintiff was severed from his body and that he has and will suffer great pain and inconvenience.'
I construe this language in accordance with its all inclusive tenor to include mental as well as physical pain and inconvenience. There is no question but that the amputation of the leg caused a disfigurement or deformity of the plaintiff. It was proper for the jury to take into consideration such fact and allow for mental suffering which was a natural and necessary result of the physical injury. Studebaker v. Pittsburgh Rys. Co., Appellant, 260 Pa. 79, 103 A. 532; McDermott v. Severe, 202 U.S. 600, 26 S. Ct. 709, 50 L. Ed. 1162.
It would have been possible for the defendant to have secured detailed information as to the nature of the pain and inconvenience suffered by the plaintiff if the defendant had so desired. Lincoln v. Herr, D.C., 6 F.R.D. 209; Sierocinski v. E. I. DuPont De Nemours & Co., supra.
It is not difficult to destroy almost any charge or instructions of the court to the jury by isolating certain limited expressions therein, but the charge must be considered as a whole with a view of determining the impression conveyed thereby to the jury. New York, C. & St. L.R. Co. v. Affolder, 8 Cir., 174 F.2d 486. Portions of a charge should not be scrutinized apart from their context as isolated verbal phenomena. Goodyear Fabric Corp. v. Hirss, 1 Cir., 169 F.2d 115.
I do not believe that the verdict rendered was against the evidence or the law. I must assume that the jury has followed the instructions of the court. Boice v. Bradley, D.C., 92 F.Supp. 750, 751.
It is my considered judgment that the instructions given to the jury, taken as a whole, fairly presented the rules of law to be applied by the jury in arriving at their decision.
Motion for judgment notwithstanding the verdict and motion for new trial are denied.
© 1992-2004 VersusLaw Inc.