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decided: May 22, 1970.


Appeal from order of Court of Common Pleas of Allegheny County, Oct. T., 1967, No. 3667, in case of Myrtle J. Stupka v. Peoples Cab Company.


Gerald N. Ziskind, for appellant.

Robert A. Cohen, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell, Mr. Justice Eagen, and Mr. Justice Pomeroy join in this opinion. Concurring Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Roberts joins in this dissent.

Author: Cohen

[ 437 Pa. Page 511]

It is clear that plaintiff, appellant, is not asserting that appellee caused her physical injuries but rather that appellee caused her financial harm by not obtaining the name or license number of the driver whose car struck the cab from the rear. As there are no prior cases on this particular subject, appellant would have this Court create and impose on cab companies the duty to obtain sufficient information about individuals involved in traffic accidents with cabs to enable cab passengers at least to know against whom to bring suit.

Common law courts have been reluctant to impose affirmative duties on individuals even in situations in which most people would feel under a moral obligation to act. The Restatement (Second), Torts, § 314 (1965) states that as long as the actor's conduct has not placed another in peril "[t]he fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." This Court, in Yania v. Bigan, 397 Pa. 316, 321-2, 155 A.2d 343, 346 (1959), stated: "Lastly, it is urged that Bigan failed to take the necessary steps to rescue Yania from the water. The mere fact that Bigan saw Yania in a position of peril in the water imposed upon him no legal, although a moral, obligation or duty to go to his rescue unless Bigan was legally responsible, in whole or in part, for placing Yania in the perilous position." Behind this is the "rugged individualism" approach of the common law and "the feeling that it is a more serious restraint on personal freedom to require a person to act than it is to place limits on his liberty to act." McNiece and Thornton, Affirmative Duties in Tort. 58 Yale L. J. 1272, 1288 (1949).

In recent years, however, there have been attempts to mitigate the harshness of this rule. Usually the

[ 437 Pa. Page 512]

    basis for the departure from the general rule has been the existence of a special relationship between the parties which, it is felt, is sufficient to transform the moral duty into a legal one. 2 Harper and James, The Law of Torts, § 18.6 at 1048 (1956); Note, Good Samaritans and Liability for Medical Malpractice, 64 Col. L. Rev. 1301, 1316 (1964). Thus, as to common carriers, the Restatement (Second), Torts, § 314A (1965) states "A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others." Case law gives support to that position. Yazoo & M.V.R.R. v. Byrd, 89 Miss. 308, 42 So. 286 (1906); Korn v. Tamiami Trail Tours, Inc., 108 Ga. App. 510, 133 S.E. 2d 616 (1963).

It must be noted, however, that this imposition of legal duty only applies to the physical well-being of the passenger. Appellant does not contend that appellee refused to offer assistance after she suffered her injuries. Rather, she states that appellee did not act to protect her financial interests. This is a step towards making a common carrier the guardian of all its passengers' interests that no court has yet taken. "The courts seem to have been somewhat more willing to impose liability on this basis when there has been physical injury to persons or property than where the injury is to the interest in financial advantage." 2 Harper and James, supra, § 18.6, n. 7 at 1046.*fn1 The interest in the passenger's physical well-being is sufficiently important

[ 437 Pa. Page 513]

    to require the carrier to act to protect it even when the injury is no fault of the carrier's. The interest in the passenger's financial well-being, however, seems of a much lesser magnitude and not of sufficient weight to overcome the traditional judicial reluctance to impose affirmative duties.*fn2 This is true at least where the carrier is not responsible for placing the passenger in the original position of peril. An individual's financial interests can be so complex ...

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