Appeal, No. 53, March T., 1958, from judgments of Court of Common Pleas of Allegheny County, Jan. T., 1945, No. 65, in case of John Ferruzza v. City of Pittsburgh et al. Judgments reversed.
Thomas E. Barton, Assistant City Solicitor, with him John A. Robb, Assistant City Solicitor, and J. Frank McKenna, Jr., City Solicitor, for appellant.
Thomas R. Eddy, with him Schuchert & Eddy, for appellee.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL.
Plaintiff, John Ferruzza, brought an action in trespass to recover for personal injuries sustained as a result of a collision between the beer truck in which he was riding and a fire truck owned and operated by the defendant, City of Pittsburgh. The jury returned two verdicts (see infra) in favor of plaintiff and against the City of Pittsburgh and the Red Star
Beverage Company, which was joined as an additional defendant by the City of Pittsburgh. The defendants filed motions for judgment non obstante veredicto and, in addition thereto, the City of Pittsburgh filed a motion for a new trial. After all of these motions were dismissed by the lower Court, the City took this appeal. Red Star Beverage Company did not appeal.
We shall first consider the motion for judgment non obstante veredicto. Since the verdict of the jury resolved conflicts in the testimony in favor of plaintiff, in considering this motion, plaintiff must be given the benefit of all the evidence which is most favorable to him together with all reasonable inferences therefrom: Bream v. Berger, 388 Pa. 433, 130 A.2d 708; Farmers' Northern Market Co. v. Gallagher, 392 Pa. 221, 139 A.2d 908.
The accident occurred on October 7, 1942, at approximately 4:30 P.M. at the intersection of West North Avenue (a public street 45 feet in width) and Arch Street (which is 36 feet in width) in the City of Pittsburgh. The intersection is a fairly busy one. At the time of the accident, plaintiff was riding in the front seat of a Red Star Beverage Company delivery truck which was being driven by Paul Regatuso, a fellow employee. The Red Star truck was proceeding in a westerly direction on West North Avenue at a speed between 15 and 25 miles per hour. As the truck approached the intersection of West North Avenue and Arch Street it was in a line of traffic, there being approximately four or five vehicles immediately preceding that of the plaintiff. This traffic did not stop and proceeded through the intersection on a green light. The vehicle in which plaintiff was riding similarly proceeded into the intersection on a green light, and when it had reached approximately the middle of the intersection the rear part of the truck was struck by
the City's fire truck which was proceeding in a southerly direction on Arch Street.
As the truck in which plaintiff was riding entered the intersection, plaintiff looked to his right and saw the City's fire truck when it was approximately 20 or 25 feet away from the intersection. Plaintiff testified that he then yelled a warning to Regatuso. Regatuso, a witness for plaintiff, testified that although he looked in both directions as he proceeded across Arch Street, he did not see the fire truck until the collision occurred. His testimony is obviously valueless. Plaintiff testified that the beer truck on which he was riding as a helper had the windows down; that neither at the time of the accident nor for a block away, nor at any other time did he hear any siren or bell or other audible sound. Plaintiff did not see any driver or fireman or any other man on the open fire truck, and if there had been a siren blowing or a bell ringing he testified that he could have heard it.
Plaintiff's testimony as to the siren or bell was contradicted by his witness Didio and by the driver and fireman of the fire truck and by three disinterested witnesses who rang or heard the siren or the bell.
The jury retired at 2 P.M. and at 3:40 P.M. they indicated that they had reached a verdict. Juror No. 1 stated that they found both defendants negligent and had decided to give the plaintiff "$15,000 plus medical expense, hospital expense (which together totaled, $874.25) [and] all Court costs and attorney's fee." The Trial Judge instructed the jury that they could not include in their verdict attorney's fees and Court costs. The jury thereupon retired, and five minutes later returned a verdict of $25,000 against both defendants.
At common law, the City of Pittsburgh would not be liable for this accident: Devers v. Scranton City,
to speed and is permitted to run through a red light, certainly recklessness of operation cannot be denied if, in exercising those prerogatives, it fails to give due warning of its approach and if the operator pays no attention whatever to the traffic which is crossing an intersecting street; moreover, he cannot be heard to say that he did not see what must have been clearly visible to him had he looked."
Was the City's driver guilty of negligence of a reckless nature? This depends upon whether the fire truck sounded its siren or rang its bell. This in turn depends - all parties agree - upon whether plaintiff's testimony that he did not hear a siren or bell was, under the circumstances here involved, sufficiently positive in form and substance to take the case to the jury.
The question of whether a statement of a witness, to wit, that he did not hear a sound or that no bell was rung, was negative or positive testimony and was or was not sufficient to take the case to the jury, in the face of strong positive affirmative testimony that a bell was rung, has vexed and perplexed the Courts. The earlier cases held that a statement by a witness that he did not hear any sound or warning was negative and insufficient to prove negligence, if there was affirmative testimony that a bell was rung or an audible sound given: Ealy v. New York Central R.R. Co., 333 Pa. 471, 5 A.2d 110; Reilly v. Philadelphia, 328 Pa. 563, 195 A. 897; Miller v. Pennsylvania R.R. Co., 299 Pa. 63, 149 A. 85. This was subsequently modified (expressly or by implication) and the statement that he did not hear a bell rung or that it was not rung was interpreted to have the same ...