The opinion of the court was delivered by: VAN DUSEN
VAN DUSEN, District Judge.
I. Motion for a directed verdict on the issue presented by Question No. 4 (liability for punitive damages) as surplusage and for a new trial on this issue (Special Question No. 4)
On this issue, which the jury decided for the defendant, the evidence must be construed in a light most favorable to the jury's "no" answer to the question.
The accident occurred in a suburban area on a single-track freight line which ran "more or less" downgrade (N.T. 50) toward Philadelphia, crossing three welltraveled highways (West Chester Pike, Township Line Road, and State Road - N.T. 87-88 & 91), as well as Cedar Lane (N.T. 90), before reaching the Garrett Road crossing where plaintiff's decedent was killed. The industrial train had cut off a gondola car and left it near the Llanerch freight station (N.T. 86) on the main track with the air brakes
applied in order to push a box car onto a side track where it was to be left. Although the air brake had been applied to the brakes on the gondola car, it started to move toward Philadelphia when the brakeman was still near enough to the car to put lumber under the wheels and board it before it had attained any considerable speed.
The following language from pages 1 and 2 of defendant's brief (Document 45) is supported by the record:
"On May 9, 1962 about 3:00 p.m. on a daylight and clear day plaintiff, age 16, was walking home from Bishop Pendergast High School accompanied by Julia Stampone, also age 16 (233). They were walking at a normal pace (254) on the gravel sidewalk parallel to Garrett Road, generally in an easterly direction, when they came to the Garrett Road railroad crossing over which is operated a single track of defendant's line of railroad. * * * [The] plaintiff was struck by a runaway gondola car (P-1) while her friend, Julia, looked up in time to step back and avoid being struck (237) * * *.
"The defendant employes were performing their job normally in their usual manner as they had for many years when suddenly this car's brakes released and started to roll freely. The brakes of the gondola car had been checked in the usual manner prior to attaching this car to the train and they appeared to operate normally (64). The setting of this car on the main track with the airbrakes on was the normal operating practice (177). It was not standard operating procedure to use chocks as contended by plaintiff to block the wheels of cars parked temporarily on the main track,
and the railroad has never provided such chocks, although occasionally the men would block the wheels of cars on sidings with pieces of lumber or debris lying along the railroad (70, 79, 80). In fact, these men had been doing substantially the same operation daily five or six times a week for a period of ten years without a similar incident (147, 170, 176). Immediately after the car started to roll an * * * effort [to avoid harm to the public] was made by the trainmen (165-6, 175, 328, 339), which included Andrew D. Loscalzo's jumping on the car and riding it to warn persons of the approaching car as it passed along the railroad track and over several street crossings (77, 83, 133-140)."
The record, including the foregoing evidence, does not require a finding of liability for punitive damages as a matter of law. See Restatement of Torts, § 908, which has been cited with approval and followed by the Pennsylvania Supreme Court;
Scott v. Curtis, 200 Pa.Super. 44, 48, 186 A.2d 403 (1962); cf. Skeels v. Universal C.I.T. Credit Corporation, 335 F.2d 846, 852 (3rd Cir. 1964).
Section 908(1) of the Restatement of Torts reads:
"§ 908. PUNITIVE DAMAGES.
"(1) 'Punitive damages' are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct."
Comment b. contains this language:
"Punitive damages are awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others."
The charge of the court on this issue (pp. 37-38 of Document 37) was in accordance with the foregoing authorities.
Plaintiff's contention that wanton misconduct and the conduct making one liable for punitive damages "are equated by the Pennsylvania decisions" (see pars. 8, 10 & 18 of Document 32) is rejected. Wanton misconduct, as defined in § 500 of the Restatement of Torts (2d) and in Evans v. Philadelphia Transp. Co., 418 Pa. 567, 212 A.2d 440 (1965),
is not the same as the "outrageous conduct
* * * done with a reckless indifference to the interests of others" ( Chambers v. Montgomery, supra, 411 Pa. at 344, 192 A.2d 355, quoting from § 908 of Restatement of Torts) required for punitive damages. See, also, Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944), as well as other cases referred to in footnote 5.
The application to strike interrogatory 4 as surplusage will be denied. It is noted that no such suggestion was made by plaintiff either when the special questions were submitted to counsel for comment (N.T. 441-458)
or at the end of the charge (N.T. 42-55 and 59-66 of Document 37).
Paragraph 14 of Motion For New Trial
The plaintiff contends that the jury should not have been permitted to hear evidence that railroad cars had never previously run away at this particular place on the issue of punitive damages, and that the court erred in its charge on this point.
These contentions are without merit. The absence of prior accidents
is often admissible for the purpose of negating the inference that a defendant was on notice of the particular danger involved, see annotation in 31 A.L.R.2d 190, 208. Apparently there are no Pennsylvania cases directly on this point and counsel have cited none in their briefs.
But although there may be some question as to whether evidence of absence of other accidents can be shown in Pennsylvania for some purposes,
such evidence is admissible on the issues of wilfulness and action so careless as to indicate wanton disregard of plaintiff's safety.
In Comment e. to § 908 of the Restatement of Torts, this language is used:
"In determining the amount of punitive damages, as well as in deciding whether they shall be given at all, the trier of fact can properly consider not merely the act itself but all the circumstances including the motives of the wrongdoer, the relations between the parties, * * *."
In the present case, it was proper for the defendant to show that the train crew was not acting with reckless indifference to the rights of others and that the train crew's conduct did not amount to "outrageous conduct" (as that phrase is used in the Restatement of Torts, § 908) by showing that the train crew had no reason to believe that its procedure was dangerous since no railroad cars had previously run away. Similarly, the absence of future accidents, when the same procedures were followed, is also relevant on the issue of bad motive.
It was also proper for the defendant to show, in defense of the claim for punitive damages, that the members of the train ...