Appeal from order of Court of Common Pleas of Allegheny County, Jan. T., 1961, No. 2841, in case of Margaret Anderson, Gladys Annette Anderson, by her parent and natural guardian, Allen Anderson et al. v. Pittsburgh Railways Company and Mellon National Bank & Trust Company, administrator of estate of Clarence A. Joseph, deceased.
Leo Daniels, with him Prichard, Lawler & Geltz, for appellant.
Paul G. Kachulis, with him Louis C. Glasso, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts concurs in the result. Mr. Justice Musmanno dissents.
This action for personal injuries arose out of a collision which occurred on the afternoon of April 25, 1959, between a streetcar owned by Pittsburgh Railways Company (Railways) and operated by its employee, and an automobile driven by Clarence A. Joseph (Joseph).*fn1 Appellees, Margaret Anderson and her daughter, Gladys Annette Anderson, were passengers aboard the streetcar.
Margaret Anderson and Gladys Annette Anderson, by Allen Anderson, her parent and natural guardian, sued Railways in an action of trespass to recover damages allegedly suffered by them in the collision, and Allen Anderson sued to recover damages in his own right. Railways joined Joseph as an additional defendant, and the matter was tried by a court and jury.
The record discloses that the streetcar and the automobile, driven by Joseph, collided when the automobile was approximately 2/3 of the way through the intersection. The automobile had proceeded into the intersection without stopping at a stop sign and, according to testimony of the operator of the streetcar, the driver was looking away, apparently in conversation with the woman seated beside him. The motorman related he immediately applied his brakes and the automobile was struck along its left rear door and fender, when the streetcar was 2/3 of the way into or across the intersection. The motorman testified that immediately after the accident, he turned to his right and saw no one lying on the floor of the streetcar, but as he turned to his right again upon getting out of the streetcar,
he saw appellees seated side by side in the streetcar where he had seen them previously. The motorman further testified that: "I asked her was she hurt and if the child was hurt.", and that Mrs. Anderson replied: "No."
The motorman's testimony revealed that in addition to Mrs. Anderson telling him she was not hurt, she related that the minor child was thrown from her arms. In his accident report, the motorman listed the child as injured and Mrs. Anderson, along with other passengers at the front of the car, as potential witnesses. Subsequently, Mrs. Anderson was treated by her family physician for injuries allegedly sustained to her back as a result of the accident.
The jury found the defendant, Railways, "not negligent", and the additional defendant "guilty of negligence", and awarded the sum of $100 to the minor-appellee, Gladys Anderson, with a like sum to her father as guardian, for her medical expenses. Plaintiff-appellees moved the court below for a new trial, which was granted by the court en banc which, in its opinion, stated: "The jury's verdict was against the weight of the credible evidence and inconsistent with the physical facts of the case as established by the defendant, Pittsburgh Railways Company. The verdict shocked the ...