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SMITH v. PITTSBURGH RAILWAYS COMPANY (12/05/61)

December 5, 1961

SMITH, APPELLANT,
v.
PITTSBURGH RAILWAYS COMPANY



Appeal, No. 93, March T., 1961, from judgment of Court of Common Pleas of Allegheny County, April T., 1957, No. 1854, in case of Roselyn K. Smith v. Pittsburgh Railways Company. Judgment affirmed.

COUNSEL

Harvey E. Schauffler, Jr., for appellant.

Leo Daniels, with him Prichard, Lawler & Geltz, for appellee.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Alpern, JJ.

Author: Jones

[ 405 Pa. Page 341]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

On January 28, 1957, appellant, Roselyn K. Smith, and her sixteen year old daughter, Carol Smith, were passengers on an uncrowded streetcar owned and operated by the Pittsburgh Railways Company, appellee. Appellant and her daughter were seated on a long seat located lengthwise in the extreme right front portion of the streetcar. According to appellant, the streetcar ride was "rough" and the car "was jerking just as though he [the motorman] was playing with the pedal" and, as the streetcar approached the so-called Bloomfield stop, passengers expecting to alight at that stop came forward and "he [the motorman] jerked that streetcar again" and a man, standing near where appellant was seated, was thrown off balance by the jolt and "the heel of his foot just stomped right down on the great toe of [appellant's] left foot" causing severe injuries. Furthermore, according to appellant, the streetcar was about to stop when the jolt occurred.*fn1 As the car approached the Bloomfield stop, Carol Smith left her seat to ask the motorman for a streetcar schedule and she "had [her] hand on the railing when the motorman started the car real fast" and she fell to the floor.*fn2 Except for the statement that other passengers were "thrust back" there is no evidence that the alleged "jolt" or "jerk" affected any other passengers in the streetcar.

At trial in the Court of Common Pleas of Allegheny County that court entered a compulsory non-suit and,

[ 405 Pa. Page 342]

    from its refusal to remove this non-suit and the entry of judgment, this appeal was taken.

In passing upon this appeal we must review the testimony in the light most favorable to the appellant and give to her the benefit of every reasonable inference arising from such testimony: Shuman v. Nolfi, 399 Pa. 211, 159 A.2d 716.

The applicable law is clear. In Staller v. Philadelphia Rapid Transit Co., 339 Pa. 100, 103, 104, 14 A.2d 289, we stated: "It is well established by a long line of decisions that 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 as to be beyond a passenger's reasonable anticipation, and nothing short of evidence that the allegedly unusual movement had an extraordinary 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." See also: Zager v. Pittsburgh Railways Co., 401 Pa. 516, 165 A.2d 30; Schilling v. Pittsburgh Railways Co., 394 Pa. 126, 145 A.2d 688; Herholtz v. West Penn Railways Co., 362 Pa. 501, 66 A.2d 839; Smith v. Pittsburgh Railways Co., 314 Pa. 541, 171 A. 879; Bollar v. Pittsburgh Railways Co., 153 Pa. Superior Ct. 199, 33 A.2d 261; Monahan v. Pittsburgh Railways Co., 149 Pa. Superior Ct. 283, 27 A.2d 534; Waldov v. Philadelphia Rapid Transit Co., 120 Pa. Superior Ct. 304, 182 A. 129.

An examination of the testimony produced by appellant fails to show that the movement of this streetcar was so unusual and extraordinary as to be beyond the ...


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