Appeals, Nos. 5 and 6, Jan. T., 1956, from judgments of Court of Common Pleas of Berks County, Sept. T., 1949, No. 138, in case of Clara Stevens, et vir v. Reading Street Railway Co., and The City of Reading. Judgment affirmed as to defendant-city; judgment reversed as to defendant-railway company.
Charles H. Weidner, with him Stevens & Lee, for appellants.
Daniel H. Huyett, III and Ralph C. Body, with them Body, Muth, Rhoda & Stoudt, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno And Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This action in trespass was instituted in August, 1949 by the plaintiffs, Clara Stevens and Mike Stevens, her husband, against Reading Street Railway Company to recover damages for personal injuries sustained by Clara Stevens when alighting from the defendant company's bus. The Railway Company joined the City of Reading as an additional defendant alleging that the City was solely or jointly liable to the plaintiffs. The City of Reading answered and then moved for judgment on the pleadings averring that the plaintiffs had not complied with the Act of July 1, 1937, P.L. 2547, 53 PS § 2774, requiring the plaintiffs to give written notice to the City of their claim within six months from the date of its origin. This motion was denied by the court below in an opinion holding that the City was properly joined as an additional defendant for the purpose of conveniently determining in one suit the right of the Railway Company, if found liable for plaintiffs' damages, to obtain contribution from the City as a joint tortfeasor, but that the City could not be held solely liable for plaintiff's injuries.*fn1 The case was tried before
a jury in May, 1951, when, after the plaintiffs had completed their testimony on the question of negligence, the court entered compulsory nonsuits in favor of both defendants. Thereafter, an application to take off the nonsuits was granted and the case was retried in April, 1954. The jury returned verdicts of $134.00 for Mike Stevens and $2,900.00 for Clara Stevens, against both defendants. Defendants filed motions for new trial and for judgment non obstante veredicto and the court en banc, one judge dissenting, entered judgments n.o.v. in favor of both defendants. From these judgments plaintiffs appeal.
Since this is an appeal from the entry of judgment n.o.v., we will consider the testimony together with all reasonable inferences therefrom in the light most favorable to the plaintiffs: Stewart v. Pittsburgh Railways Company, 379 Pa. 260, 108 A.2d 767.Accordingly, the facts may be stated as follows: On the morning of December 11, 1948, a clear, dry day, the plaintiffs were passengers for hire on a bus owned and operated by the defendant, Reading Street Railway Company, a common carrier. The bus was traveling in a southerly direction on North Fifth Street, approaching the intersection of Fifth and Washington Streets in the City of Reading, where the plaintiffs and other passengers intended to alight. The bus regularly stopped on the west cartway of Fifth Street flush with the west curb and with the front of the bus about even with the north line of the north crosswalk over Fifth Street. On the day of the accident, however, defendant's bus stopped a considerable distance north of its regular stopping place, at an angle, with its front end approximately one and one-half feet away from the west curb and the rear end five or six feet from the curb.
The wife-plaintiff was approximately in the middle of a line of fifteen or sixteen persons who got off the
bus at this point. The bottom step at the exit door which was located toward the rear of the bus, was fourteen and a half inches from the surface of the roadway. Mrs. Stevens, in alighting, stepped off this bottom step with her right foot first, and then her left foot went into a hole seventeen inches long, a foot wide and about six inches deep, throwing her to the ground. Part of the hole was under the bus and part extended out beyond the south side of the exit steps. When Mrs. Stevens stepped down to the road surface, two passengers were standing to her left at the exit door which prevented her from seeing the hole. Another woman passenger who preceded the wife-plaintiff from the bus, fell at the same hole, but Mrs. Stevens did not witness this incident, and did not know how it occurred. Mrs. Stevens never saw the hole until she fell and did not know of its existence.
The hole had existed continuously for a period of approximately six weeks prior to the accident. After the wife-plaintiff fell, and while being assisted to her feet, the operator of defendant's bus said to her: "I am sorry, it is my fault, I stopped at the wrong place." The bus operator had driven a bus over the same route for four consecutive months prior to the accident, five days a week.
North Fifth Street at the time and place of the accident was designated as a State highway under Section 2 of the Act of June ...