Appeal, No. 348, Jan. T., 1960, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1956, No. 7723, in case of John J. Lunn v. Vernon J. Boyd et al. Judgment reversed.
Bernard G. Segal, with him William A. Schnader, and Schnader, Harrison, Segal & Lewis, for appellant.
John Patrick Walsh, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. JUSTICE EAGEN.
The plaintiff, John J. Lunn, sued the Yellow Cab Company and one of its cab drivers, Vernon J. Boyd, to recover damages for personal injuries suffered as a result of an assault committed by Boyd on Lunn during the former's working hours. A jury trial resulted in a verdict in plaintiff's favor against both defendants. The cab company filed motions for judgment
n.o.v. and/or a new trial, which the lower court dismissed. From the judgment entered on the verdict, the cab company appeals.
The only witnesses testifying at trial as to the occurrence were the individuals directly involved. As to why, how and exactly where it occurred, their testimony is in substantial conflict.
The plaintiff, an off-duty policeman, testified that about two o'clock a.m. on September 9, 1956, he approached on foot a yellow cab, standing at a cabstand at the corner of Girard Avenue and 29th Street in the City of Philadelphia. He noticed the driver getting into the cab and whistled to him. The cab started in motion and made a "U" turn on Girard Avenue in order to travel in the opposite direction. The plaintiff yelled to the cab driver that he should be more careful. The cab stopped. Words passed between them and the cab driver asked, "What business is it of yours?" The plaintiff replied that he was a policeman and that it was his business. Boyd alighted from the cab and walked in the direction of the plaintiff, who was standing on the sidewalk twenty to thirty feet away and when he reached a point six or eight feet from the plaintiff, he suddenly lunged at the latter with an open knife. A serious scuffle ensued. A passerby stopped his car and assisted Boyd in punching and kicking the plaintiff.*fn1 This unknown individual and Boyd left the scene in their respective automobiles. The plaintiff admitted having visited a couple of clubs immediately before, attending a wedding reception earlier in the evening, and consuming a quantity of beer.
Boyd, called by the plaintiff as for cross-examination, testified that the cab was stopped at the cabstand when the plaintiff approached and inquired if he could hire the cab. Boyd told the plaintiff that he had just received a call to pick up a passenger at another address, and that the plaintiff would have to wait for another cab which would be along in a few minutes. The plaintiff then became extremely abusive in his language, reflecting upon Boyd's race and color, and appeared to be very intoxicated. The plaintiff then opened the front door opposite the driver, and attempted to get into the front seat of the cab, but did not do so, while he continued to verbally abuse Boyd. The latter shut off the motor, got out on the driver's side and walked around to the rear of the cab. He stopped momentarily; then, after the plaintiff stepped back from the cab, he walked up and closed the door which the plaintiff had opened. When Boyd turned to walk back to the driver's side, intending to re-enter the cab, the plaintiff hit him, knocked him down and broke his nose. ...