Opinion
September 14, 1959.
November 11, 1959.
Negligence — Street railways — Bus — Violent start — Evidence — Effect of movement of bus on other passengers.
1. In a trespass action, in which it appeared that plaintiff testified that, after he had boarded defendant's bus, it started forward with "a violent surge" and that, as he was walking toward the rear of the bus, he was thrown to the floor; and that there was no collision between the bus and any other vehicle, and there was no testimony that passengers other than plaintiff were disturbed or affected by the movement of the bus; it was Held that the evidence was insufficient as a matter of law to establish negligence of defendant.
2. Angelo v. Pittsburgh Rwys. Co., 189 Pa. Super. 574, and Cocivera v. Philadelphia Transportation Co., 190 Pa. Super. 50, analyzed and discussed.
Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ. (HIRT, J., absent).
Appeal, No. 279, Oct. T., 1959, from judgment of Municipal Court of Philadelphia County, Aug. T., 1957, No. 213, in case of Otto Christensen v. Philadelphia Transportation Company. Judgment affirmed.
Trespass for personal injuries. Before O'DONNELL, J.
Verdict for plaintiff in the sum of $1,250; order entered granting defendant's motion for judgment n.o.v. Plaintiff appealed.
Harry R. Mayer, for appellant.
Albert R. Subers, for appellee.
Argued September 14, 1959.
On May 1, 1957, Otto Christensen sustained injuries while a passenger on a bus of the Philadelphia Transportation Company. He instituted a trespass action which resulted in a verdict in his favor. The court below granted defendant's motion for judgment n.o.v. This appeal followed.
The record discloses that the bus was northbound on Broad Street and, when appellant boarded it, was stopped at the southeast corner of Broad and Walnut Streets. From that position the bus started forward with what appellant termed "a violent surge". Appellant testified that he was walking toward the rear of the bus to find a seat, and that the movement of the bus threw him to the floor. While appellant's testimony was contradicted by that of the bus driver, we must view the evidence in the light most advantageous to the party who has the verdict: Richardson v. Wilkes-Barre Transit Co., 172 Pa. Super. 636, 95 A.2d 365. There was no collision between the bus and any other vehicle, and there was no testimony that passengers other than appellant were disturbed or affected by the movement of the bus.
We have reviewed the legal principles which govern actions of this type in two recent cases. See Angelo v. Pittsburgh Rwys. Co., 189 Pa. Super. 574, 151 A.2d 867, and Cocivera v. Phila. Transportation Co., 190 Pa. Super. 50, 152 A.2d 272. In the Angelo case it was conceded that the bus had made a violent and unusual stop, affecting not only the plaintiff but other passengers as well. We held that the evidence was sufficient to raise a presumption of negligence. In the Cocivera case the movement of the bus was not so unusual and extraordinary as to be beyond reasonable anticipation, and passengers other than the plaintiff were not affected. We approved the entry of a compulsory nonsuit.
The factual situation in the case at bar is similar to that in the Cocivera case, rather than to that in the Angelo case. Appellant's testimony as to the happening of the accident and its effect upon him is entirely consistent with a mere loss of equilibrium brought about by a movement of the bus of the type he was bound to anticipate and guard against. Cf. Hufnagel v. Pittsburgh Rwys. Co., 345 Pa. 566, 29 A.2d 4. The evidence clearly falls short of the standard required to establish negligence in cases of this character. It was therefore proper for the lower court to enter judgment n.o.v. for the defendant.
Judgment affirmed.