September 11, 1958
PITTSBURGH RAILWAYS COMPANY, APPELLANT.
Appeals, Nos. 209 and 210, April T., 1957, from judgments of Court of Common Pleas of Allegheny County, July T., 1954-C, No. 1383, in case of Bessie Miller et vir v. Pittsburgh Railways Company. Judgments affirmed.
Con F. McGregor, for appellant.
Regis C. Nairn, with him James P. McArdle, for appellees.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 187 Pa. Super. Page 335]
OPINION BY WOODSIDE, J.
This is an appeal by the defendant, Pittsburgh Railways Company, from a judgment in favor of the plaintiffs entered upon jury verdicts in favor of the husband-plaintiff in the amount of $2,500 and in favor of the wife-plaintiff in the amount of $5,000 for injuries sustained by the wife-plaintiff while she was a passenger on one of defendant's street cars. The appellant asks us to enter judgment n.o.v.
The testimony considered in the light most favorable to the plaintiffs, as we must in this appeal, establishes that on December 16, 1953, the plaintiff, Bessie Miller, and a friend of hers, Mrs. Dorothy Cook, were
[ 187 Pa. Super. Page 336]
the only passengers on a street railway car owned and operated by the defendant between Pitcairn and Trafford, in Allegheny County. The two women were seated near the center of the street car as it crossed the bridge between Pitcairn and Trafford. At the end of the bridge the car made a sudden stop on a curve leading from the bridge to the regular car stop. Passengers sometimes depart at this point rather than at the regular car stop. When the car stopped both women arose and proceeded towards the front of the car, which started moving again and shortly thereafter came to a sudden violent stop. Mrs. Cook was thrown off of her feet into a horizontal position on one of the long side seats of the street car and, when she arose, she saw the plaintiff, Bessie Miller, "wrapped around a steel pole near the front of the car". Mrs. Miller had been thrown against one of the steel upright poles with sufficient force to cause injuries to her shoulder and chest. Neither the plaintiff nor Mrs. Cook were holding onto anything for support at the time they were thrown by the violent lurching of the street car.
The defendant contends that the evidence is insufficient to establish negligence on the part of the defendant and that the failure of the plaintiff to hold onto any of the upright supports and straps available convicts her of contributory negligence as a matter of law.
The law in regard to the negligence of a street railways company for sudden jerks or lurches of street cars has been well established in Pennsylvania by a long line of decisions. Testimony indicating that a moving trolley car jerked suddenly or violently is not sufficient, of itself, to establish negligence in its operation. "There must be a showing of additional facts and circumstances from which it clearly appears that the movement of the car was so unusual and extraordinary
[ 187 Pa. Super. Page 337]
as to be beyond a passenger's reasonable anticipation, and nothing short of evidence that the allegedly unusual movement had an extraordinarily disturbing effect upon other passengers, or evidence of an accident, the manner of the occurrence of which or the effect of which upon the injured person inherently establishes the unusual character of the jolt or jerk, will suffice." Staller v. Philadelphia Rapid Transit Co., 339 Pa. 100, 103, 104, 14 A.2d 289 (1940); Hill v. West Penn Railways Co., 340 Pa. 297, 16 A.2d 527 (1940); Hufnagel v. Pittsburgh Railways Co., 345 Pa. 566, 29 A.2d 4 (1942); Herholtz v. West Penn Railways Co., 362 Pa. 501, 504, 66 A.2d 839 (1949).
The fact that a jolt is sufficient to cause a standing passenger to lose his balance, or to cause a passenger sitting on a lengthwise seat to be thrown against an upright, is not sufficient to establish negligence. See Bollar v. Pittsburgh Railways Co., 153 Pa. Superior Ct. 199, 33 A.2d 261 (1943). Nor is the fact that other passengers were "jolted about" or that "everybody in the car lurched" sufficient to establish negligence. Smith v. Pittsburgh Railways Co., 314 Pa. 541, 171 A. 879 (1934). See also Endicott v. Philadelphia Rapid Transit Co., 318 Pa. 12, 177 A. 17 (1935).
The only question before us in regard to the defendant's negligence, therefore, is whether the evidence is sufficient to establish such an unusual and extraordinary stop or lurch as would raise a presumption of negligence on the part of the defendant. We feel that the evidence is sufficient.
Defendant claims that the present case falls within a line of Pennsylvania cases in which it was held that the evidence of sudden jolts or lurches was insufficient to establish anything more than the jolts or lurches which could ordinarily be expected in normal street car operation. The evidence in the present case,
[ 187 Pa. Super. Page 338]
however, goes beyond the evidence in those cases cited by the defendant.
In Bollar v. Pittsburgh Railways Co., supra, 153 Pa. Superior Ct. 199, 33 A.2d 261 (1943), the evidence of the effect upon the other passengers was merely that they were thrown sideways on the seat and that a standing passenger had lost his balance. In Smith v. Pittsburgh Railways Co., supra, 314 Pa. 541, 171 A. 879 (1934), the only evidence of the effect of the lurch upon other passengers was that one man was jolted about in his seat. In Coyle v. Pittsburgh Railways Co., 149 Pa. Superior Ct. 281, 27 A.2d 533 (1942), the evidence was that the other passengers lurched but that plaintiff was the only one that was thrown so violently. The Court there observed that there was "no evidence any of them were thrown to the floor or were injured." (Emphasis supplied). In Staller v. Philadelphia Rapid Transit Co., supra, 339 Pa. 100, 14 A.2d 289 (1940) there was no evidence of any extraordinary lurch and the plaintiff's witness testified that there was nothing unusual or violent about the operation of the car. In Mervine v. Aronomink Transportation Co., 348 Pa. 475, 35 A.2d 255 (1944), there was no evidence to indicate the other passengers were even disturbed. In Hufnagel v. Pittsburgh Railways Co., supra, 345 Pa. 566, 29 A.2d 4 (1942), the evidence was that people were slipping about in their seats and that a package had been jolted from a passenger's lap. In Herholtz v. West Penn Railways Co., supra, 362 Pa. 501, 66 A.2d 839 (1949), plaintiff's testimony showed that the other persons in the car "were not jolted off their feet but fell against her, causing her to sit down on a corrugated steel strip ... which was at the top of the step leading from the platform into the car." In all of these cases the evidence failed to show an occurrence which could have been caused only by an extraordinary
[ 187 Pa. Super. Page 339]
jolt or jerk. On the contrary, the evidence indicated a mere loss of equilibrium brought about by a car movement of the type which passengers were bound to anticipate and guard against.
To permit an inference that the jerk or jolt was excessive based upon its effect on the other passengers, it must clearly be shown not only that the other passengers were affected by the movement, but that they were affected to a greater extent than was usual in the normal operation of a street car. Hufnagel v. Pittsburgh Railways, supra; Herholtz v. West Penn Railways, supra.
Judgment is affirmed.
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