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decided: April 20, 1965.


Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1957, No. 43, in case of James Pedretti v. Pittsburgh Railways Company.


John Ward Hindman, with him Prichard, Lawler & Geltz, for appellant.

John M. Feeney, with him Irwin M. Samuels, and McArdle, Harrington, Feeney & McLaughlin, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Justice Musmanno dissents.

Author: Jones

[ 417 Pa. Page 582]

At approximately 9:00 p.m. on May 20, 1956, James Pedretti (Pedretti), boarded a street car of the Pittsburgh Railways Company (Railways), at Wood Street, Pittsburgh, en route to the Beltzhoover section of that city. At the so-called "Boggs Stop" of the Railways -- a usual stopping place for its street cars -- Pedretti alighted from the street car. At that stop, -- located upon the Railways' private right-of-way --, there are two separate platforms, one of which is located along the outbound track and the other along the inbound track. Both platforms are connected by an asphalt crossing owned by the Railways, which crossing serves as a means of egress by way of leading to nearby Sylvania Avenue.

[ 417 Pa. Page 583]

After Pedretti had left the street car, he proceeded across the asphalt crossing and, at a point near the fourth or outside rail of the inbound tracks, he claims to have fallen by reason of his left foot dropping into a hole located within the asphalt crossing.

Pedretti instituted a trespass action in the Court of Common Pleas of Allegheny County against the Railways. After a trial, the jury found a verdict for Pedretti and against the Railways in the sum of $51,500. Railways filed a motion for a new trial. After argument of this motion, the two-judge court en banc, consisting of Judge Brosky, the trial judge, and Judge Smith, divided: Judge Brosky favored refusal of a new trial while Judge Smith favored the grant of a new trial. However, both judges agreed the verdict was excessive and that it should be reduced by $10,000, a reduction which Pedretti accepted. From the judgment entered on the verdict this appeal was taken.

The Railways raises four questions, three relating to alleged trial errors and the fourth to the alleged excessiveness of the verdict.

Initially, we consider the most serious of the questions raised, one which concerns an alleged error in the court's charge to the jury. Inter alia, the court instructed the jury: ". . . and then we conclude these principles affecting the carrier by saying that where there occurs an injury to a passenger, let's say, such as happened here to Mr. Pedretti, and that injury is caused by a defect in the crossing, such as the type as alleged here to have caused Mr. Pedretti's accident, then we do have a legal presumption of negligence, placing upon the Defendant thereupon the burden of disproving such negligence. Now, you notice I said a legal presumption of negligence; that presumption can be rebutted, of course, by the [Railways]." (Emphasis supplied).

[ 417 Pa. Page 584]

It is well settled that, while not an insurer of the safety of its passengers (Seburn v. Luzerne & Carbon Page 584} County Motor Transit Co., 394 Pa. 577, 580, 148 A.2d 534; Archer v. Pittsburgh Railways Co., 349 Pa. 547, 37 A.2d 539), a carrier does owe to its passengers the highest degree of care for their safety (Seburn, supra; Archer, supra). Moreover, under certain limited circumstances, this Court has recognized that a presumption may arise that an accident resulting in injury to a passenger was caused by the negligence of the carrier and that the carrier is called upon to disprove such negligence. This doctrine, with its limitations, was well expressed in Orms v. Traction Bus Co., 300 Pa. 474, 476, 150 A. 897: "Prima facie, where a passenger on a common carrier is injured, without fault of his own, by the carrier, its employees or anything connected with the appliances of transportation, a legal presumption of negligence is cast on the carrier which it must disprove: [citing authorities]. But, . . ., it is not every injured passenger who can recover damages in an action against a common carrier transporting him at the time he sustains his injury. 'No presumption of negligence arises merely from the fact that the plaintiff was injured while a passenger.' The rule is limited by the manner in which the passenger received his injury. Where an accident is occasioned by a third person, or some instrumentality outside the conveyance, the carrier is not responsible for the injury; there must be evidence tending to connect the carrier or some of the appliances with the injury: [citing authority]." (Emphasis supplied). See also: Zaltouski v. Scranton ...

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