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HARRIS v. DEFELICE. (11/15/54)

November 15, 1954

HARRIS, APPELLANT,
v.
DEFELICE.



Appeals, Nos. 277 and 278, March T., 1954, from judgments of Court of Common Pleas of Allegheny County, July T., 1950, No. 696, in case of Eugene N. Harris v. Attilo DeFelice and Pittsburgh Railways Company. Judgments affirmed. Trespass for personal injuries. Before DUFF, J. Compulsory non-suit entered as to defendant Railways Co., disagreement of jury as to liability of individual defendant and jury discharged; plaintiff's motion to take off non-suit refused, and individual defendant's motion for judgment granted, before MARSHALL, SMART and DUFF, JJ., opinion by DUFF, J. Plaintiff appealed.

COUNSEL

James C. Evans, with him Evans, Ivory & Evans, for plaintiff, appellant.

Con F. McGregor, for defendant, appellee.

Kim Darragh, for defendant, appellee.

Before Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 379 Pa. Page 471]

OPINION BY MR. JUSTICE CHIDSEY

This action in trespass was instituted by the plaintiff, Eugene N. Harris, to recover damages for injuries suffered by him when struck by defendant Attilo DeFelice's automobile after alighting from the defendant Pittsburgh Railways Company's street car. During the course of the trial a compulsory non-suit was entered in favor of the corporate defendant. The jury failed to agree upon a verdict as to the individual defendant and was discharged. Following their discharge the plaintiff filed a motion to take off the judgment of compulsory non-suit and the individual defendant filed a motion for judgment in his favor upon the whole record, pursuant to the Act of April 20, 1911, P.L. 70, 12 PS ยง 684. After argument the court en banc refused plaintiff's motion and granted the individual defendant's motion. From the judgments thereupon entered, plaintiff appeals.

In reviewing the record we will consider the facts and the reasonable inferences therefrom in a light most favorable to the plaintiff as we are required to do: Jones v. Carney, 375 Pa. 32, 99 A.2d 462. Thus viewed, the following factual situation is presented.

On November 17, 1949, at about two A.M. the plaintiff was a passenger on the corporate defendant's street car which was proceeding in an easterly direction on Freeport Road in the Borough of Sharpsburg, Allegheny County, Pennsylvania. The night was dark

[ 379 Pa. Page 472]

    and hazy and a light rain was falling. Plaintiff informed the operator of the street car that he wanted to go to the Dixie Drive Inn. Plaintiff was discharged directly across the street from the inn on the southerly side of the highway, which admittedly was not a regular car stop. At this particular point the highway is about 50 feet wide and runs generally east and west. The defendant transportation company maintains a single track generally in this area, but at the place where plaintiff was put down there is, for a short distance, a double track, allowing street cars operating in different directions to pass each other. Freeport Road is bordered on the south by a retaining wall owned by the Pennsylvania Railroad Company. There is an elevated space running along the base of this wall, between it and the curb of the highway sufficient in width to permit a person to stand thereon.

After alighting from the street car, the plaintiff stood on this space and waited until the car started again before entering the cartway. After the street car moved forward he then proceeded to cross the street. When plaintiff reached the middle of the road, he hesitated or stopped for a second, looked to his right, and having observed no traffic approaching from that direction, he walked on. After he was a couple of steps beyond the middle of the highway he saw the headlights of the individual defendant's automobile which was approaching from the right, according to plaintiff's estimate, 160 or 170 feet away. Plaintiff continued across the highway, testifying that he was about three-fourths of the way across, when he was struck by the defendant's automobile and hurled a distance of from 25 to 30 feet, suffering a fracture of his right leg, his right wrist and one rib, together with abrasions and contusions. The automobile of the defendant was damaged on the left side of the hood and front grille.

[ 379 Pa. Page 473]

Considering first the liability of the defendant carrier, the applicable law is clear. A common carrier owes a duty to its passengers not only to exercise a high degree of care and diligence in transporting them to their destination but also in affording them a reasonable opportunity to alight and pass out of danger: O'Malley v. Laurel Line Bus Co., 311 Pa. 251, 254, 166 A. 868; Brown v. Beaver Valley Motor Coach Company et al., 365 Pa. 578, 581, 76 A.2d 403; Brown v. Ambridge Yellow Cab Company, 374 Pa. 208, 97 A.2d 377. The mere fact that a street car discharges its passengers at an unusual stop does not in itself prove negligence: Hoffman v. Philadelphia Transportation Co., 369 Pa. 212, 215, 85 A.2d 144; Low v. Harrisburg Railways Co., 290 Pa. 365, 371, 138 A. 852. It is only when a passenger is mistakenly led to ...


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