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decided: June 24, 1966.


Appeal from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1962, No. 5202, in case of Frances B. Auerbach v. Philadelphia Transportation Company.


Harry A. Takiff, with him Takiff & Bolger, for appellant.

B. Nathaniel Richter, with him Kenneth Syken, John J. McCarty, and Richter, Lord & Cavanaugh, for appellee.

Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Jones and Mr. Justice Cohen dissent.

Author: Musmanno

[ 421 Pa. Page 596]

Mrs. Frances B. Auerbach, 53 years of age, was gravely injured and permanently crippled on August 30, 1962, when a bus of the defendant Philadelphia Transportation Company passed over her body, resulting in an amputation of her right leg. She brought suit against the traction company, the jury returning a verdict in the sum of $237,500. The defendant seeks a new trial, alleging trial errors.

Mrs. Auerbach testified that while she was walking southwardly on 18th Street, headed for her home, and had reached a point about one foot away from the north curb line of Walnut Street and while still on the sidewalk, a bus of the defendant company climbed the curb and brushed against her. She attempted to step back, but as she was doing this, the driver directed the forward part of his huge vehicle toward his left, causing the rear part of the bus to mount the sidewalk, striking her and knocking her to the ground. She was dragged into the street and the bus, passing over her, inflicted horrible and mangling mutilations, unnecessary, fortunately, to describe here.

If the accident happened in this manner, the negligence of the defendant company, through its driver, was established absolutely. A pedestrian on a sidewalk is entitled to sanctuary from vehicles on the street as surely as one praying on his knees in a cathedral.

The defendant company disputed that the accident happened in the manner described by the plaintiff. The bus driver testified that as he was about to cross 18th Street, having proceeded normally in a westward direction on Walnut Street, the plaintiff stepped out into Walnut Street and then drew back. The driver could not say just how his vehicle finally came into contact with the body of the plaintiff. In view of the fact that the defendant now urges that the lady who

[ 421 Pa. Page 597]

    stepped in front of the bus might not have been the plaintiff, as will be noted later, it may be in order to quote the driver's testimony in this regard: "Well, as I was proceeding across and got alongside the first newsstand, a woman stepped off the pavement, off the curb, into the street. I hit my brakes and she stepped back or jumped back, I can't recall. I eased my foot pressure off the brake and coasted across 18th Street. I heard someone holler. I stopped my bus. I got my money to go out, and I started walking back towards the intersection. As I got back to the curb, the west side curb of 18th and Walnut Street, I saw this lady sitting up in the street and there was a lady leaning over her with a white uniform on, a young lady, and there was a man also kneeling over her. The lady was hollering."

The driver admitted that after passing the woman he exclaimed "My God," slammed on his brakes and looked into the rear mirror: "Q. Why did you look in your right rear mirror? A. I wanted to make sure that the lady that I saw jump back up off -- out of the street was O.K. . . . Q. You looked in your rear mirror because you thought maybe you hit her, is that it? A. I wanted to re-assure myself, sir. Q. As to whether you had hit her, is that right? A. Yes, sir."

When questioned by the Accident Investigation Police, the driver said: "I thought it was a close one."

The case was ably tried by both counsel, advocates of considerable experience, the trial judge presided with competence, patience, forbearance and firmness, and the jury returned a verdict which, from all appearances, was a just and proper one, entirely supported by the evidence. A new trial, with all its attendant anxieties, time, and expense involved should be avoided unless, of course, there were such errors in the first trial as makes a retrial imperative under trial rules now well established in Pennsylvania jurisprudence.

[ 421 Pa. Page 598]

Defendant's counsel avers that there were such errors and has filed a formidable brief in support of his contentions.

We will consider them seriatim.

The defendant asserts that the trial court submitted to the jury alternative and conflicting theories as to the happening of the accident, neither alleged nor proved. We have seen that there were two main conflicting accounts as to how the accident happened, the plaintiff maintaining that the bus usurped the sidewalk occupied by the plaintiff, the defendant asserting that the plaintiff entered into the street occupied by the bus. The defendant, however, did not limit its defense to the lady-in-the-street assertion. It advanced additional various theories as to how the distressing circumstances reached tragic climax. Among them is the proposition that the lady ran into the bus, that possibly she had an epileptic seizure and fell under the bus, that the bus hewed to a straight line on Walnut Street and therefore the doleful event could not have developed as narrated by the plaintiff. The defendant not only advanced these arguments in academic refutation of the plaintiff's case, but produced evidence in support of these propositions.

In these circumstances, the trial judge was compelled to instruct the jury on the varying factual assertions. Indeed, it would have committed error had it not lifted a lantern of enlightenment in the area where the defendant cast so many shadows discrediting to the plaintiff's case. For instance, the defendant claims that it was error for the court to charge on certain provisions of The Vehicle Code. It asserts that since the plaintiff stated she was on the sidewalk and did not descend into the street, there was no need for the court to charge on the matter of traffic lights. But the defendant claimed that the plaintiff stepped off the curb into the street when the traffic light was red

[ 421 Pa. Page 599]

    against her and green for the bus. The court could not avoid charging on responsibilities weighing on motorists and pedestrians where traffic lights are involved in the litigation. Then the defendant complains because the court said that proceeding ahead (for motorist or pedestrian) in the face of a non-green light, constituted negligence, urging that such a violation could not be regarded as negligence unless it was the proximate cause of the accident. But the court charged very clearly on proximate cause: "Furthermore, even if you determine that the defendant was negligent and the plaintiff was not contributorily negligent, you must then determine whether the defendant's negligence was the proximate cause of the plaintiff's injuries and ...

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