Appeals, Nos. 319, 320, 322, 323, 324 and 325, Jan. T., 1958, from judgments of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1955, No. 4315, in case of Raymond H. Rodgers et ux. v. Yellow Cab Company et al. Judgments reversed.
James J. Leyden, with him Josephine H. Klein, and Schnader, Harrison, Segal & Lewis, for appellant.
George D. Sheehan, with him John Paul Erwin, for appellants.
R. Lawrence Clay, with him Clay and Newlin, for appellees.
Before Jones, C.j., Bell, Musmanno, Cohen and Bok, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
Eva Rodgers and her husband, Raymond H. Rodgers, the appellees, instituted a trespass action against the Yellow Cab Company (herein called Yellow Cab), one of appellants, to recover damages for injuries allegedly sustained by Mrs. Rodgers when a taxicab in which she was a passenger was driven into an excavation at the southeast corner of 33rd Street and Woodland Avenue, Philadelphia. The Yellow Cab Company joined as additional defendants the City of Philadelphia, John F. Meehan & Son, (herein called Meehan), Philadelphia Gas Works, Philadelphia Transportation Company and the Philadelphia Electric Company (herein called Electric Company). Prior to trial and by stipulation of the parties, the Philadelphia Gas Works was dropped as a defendant; during the trial, a verdict was directed in favor of the Philadelphia Transportation Company. The jury returned verdicts in favor of Eva Rodgers in the amount of $15,000, and in favor of Raymond H. Rodgers in the amount of $10,000 against Yellow Cab Company, John F. Meehan & Son and Philadelphia Electric Company, the present appellants.*fn1 Motions for judgment n.o.v. and a new trial were filed on behalf of the three present appellants. The motions were denied, and, upon the filing of a remittitur for all damages in excess of $7,000 by
the appellee husband, judgments were entered on the verdicts for both appellees and against Yellow Cab, Meehan and the Electric Company.
The accident occurred on March 8, 1955, at the junction of Chestnut Street, Woodland Avenue and 33rd Street at approximately 1 p.m. on a bright, clear day. Chestnut Street, a one way street eastwardly, runs generally east-west, 33rd Street runs north-south and Woodland Avenue runs northeasterly-southwesterly and diagonally intersects both Chestnut and 33rd Streets. Immediately prior to the accident, the cab, in which Mrs. Rodgers was a passenger, was proceeding in a northeasterly direction on Woodland Avenue, and had stopped southwest of the west curbline of 33rd Street in the extreme right-hand lane on Woodland Avenue, for a traffic light. Directly in front of the cab a large truck had stopped and a trolley car had halted on its left. When the traffic light turned green, the cab driver, intending to turn east on Chestnut Street, followed the truck across the intersection, and, at approximately the east curbline of 33rd Street, the right front, and subsequently, the right rear, wheel of the cab dropped into a hole or excavation. The size and width of the truck apparently permitted its wheels to clear the hole.
The excavation, 6 to 8 inches in depth, had been dug by Meehan under a contract with the Electric Company for the relocation of one of its conduits. The Electric Company had been issued a permit for the excavation by the City of Philadelphia. Three employees of the Electric Company, apparently employed in a supervisory capacity, were at the work site, one of whom had plotted the course over which the ditch for the conduit was to proceed. The excavation ran from a point several blocks south of the intersection of Woodland Avenue and 33rd Street north to the intersection.
Yellow Cab maintains that judgment n.o.v. should have been entered on its behalf because there was no evidence of record to warrant a finding that its cab driver was guilty of negligence. Meehan and the Electric Company contend that judgment n.o.v. should have been entered in their behalf because the record clearly demonstrates, as a matter of law, that the negligence of the cab driver was the sole proximate cause of the accident. Yellow Cab argues in the alternative that a new trial should be granted since the court below erred in charging the jury on negligence and as to certain elements which were to be considered in assessing the damages.Meehan and the Electric Company argue that they are entitled to a new trial because the court below failed to adequately charge the jury on proximate cause and because the verdicts were excessive.
We will initially consider the validity of Yellow Cab's motion for judgment n.o.v. The wife-appellee testified that the cab proceeded across the intersection at a speed of from five to ten miles per hour, approximately two feet behind the truck. She estimated that the excavation into which the wheels of the cab entered was 6 or 7 inches in depth. She did not observe any warning or barricade to indicate that there was an excavation at that point.
John W. Johnson, a cab driver for thirty years, testified that the cab proceeded across the intersection at a speed of from five to eight miles per hour, approximately ten feet behind the truck. He stated that there was nothing at the exact point where the accident occurred to indicate that a hole had been dug, and that, after the accident, he observed the hole, approximately 6 inches in depth and 10 inches in width and running about 2 feet ...