Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1960, No. 2147, in case of Jennetta Williams v. Philadelphia Transportation Company, now Southeastern Pennsylvania Transportation Authority.
James Conwell Welsh, for appellant.
Gordon Gelfond, with him Freedman, Borowsky & Lorry, for appellee.
Wright, P. J., Watkins, Montgomery, Hoffman, Spaulding, and Cercone, JJ. (Jacobs, J., absent). Opinion by Cercone, J. Jacobs, J., took no part in the consideration or decision of this case.
[ 219 Pa. Super. Page 135]
Plaintiff instituted an action in trespass against the defendant to recover damages for injuries sustained by her as a result of a collision between defendant's bus and her automobile at the intersection of 17th and Page Streets in the City of Philadelphia.
Although plaintiff did not allege in her Complaint wanton misconduct on the part of the defendant, her counsel asked the court at close of trial to charge the jury on wanton misconduct as it applied to the evidence relating to the bus driver's operation of his vehicle. This request was denied, and the case was submitted to the jury. The jury first rendered a verdict finding the plaintiff guilty of contributory negligence. After being instructed as to the proper form of a verdict, the jury rendered a verdict in favor of the defendant company.
[ 219 Pa. Super. Page 136]
Plaintiff made a motion for new trial, arguing, inter alia, that the jury should have been charged on the issue of wanton misconduct. The defendant argued against the motion contending there was no evidence of wanton misconduct on the part of defendant's bus driver, and therefore, the court was not required to charge on such issue. The trial judge, however, granted a new trial, stating in his opinion: "A review of the record discloses sufficient and adequate testimony in plaintiff's case from which the jury, if so charged, could reasonably have concluded that plaintiff was in a position of peril in the intersection, that defendant's driver had actual knowledge of this peril and sufficient time to avoid the accident, and that, notwithstanding, defendant's driver recklessly disregarded plaintiff's danger, by proceeding into the intersection. In view of the foregoing, I have determined that the jury should have been charged on the issue of wanton misconduct and, if found to exist, that contributory negligence was not a bar to plaintiff's recovery. Not having so charged on an issue which might have controlled the outcome of the case, plaintiff is entitled to a new trial: Fugalgi v. Camasi, 426 Pa. 1 (1967)."
Defendant has appealed from this grant of a new trial, contending that (1) there was no evidence of wanton misconduct on the part of the defendant requiring instructions on that issue; and (2) there was no allegation of wanton misconduct in plaintiff's Complaint, and therefore, the court below was improperly allowing the introduction of a new cause of action after the statute of limitations had run.
A thorough study of the transcript of the testimony in this case confirms the lower court's opinion that the bus driver's wanton misconduct was adequately shown at trial. There was evidence sufficient to support a finding by the jury that as plaintiff was ...