Opinion
October 2, 1947.
November 24, 1947.
Negligence — Automobiles — Private land — Pedestrian — Contributory negligence — Employe or independent contractor — Hired trucks.
1. In an action of trespass, in which it appeared that while plaintiff was standing in clear view of defendants' driver, at the extreme left of a driveway on his employer's premises, he was struck by defendants' truck, moving on the extreme left, without warning of its approach, it was Held, in the circumstances, that the questions of defendants' negligence and plaintiff's contributory negligence were for the jury. [71-3]
2. In such case, where it appeared that defendants were public carriers, and that plaintiff's employer, the additional defendant, had hired the use of defendants' trucks, paying the posted tariff rates, and did not exercise any control over the manner in which the driver of the trucks operated, it was Held that the court properly directed a verdict for the additional defendant. [75] Appeals — Review — Verdicts — Excessiveness.
3. In this case, a verdict for serious permanent personal injuries, in the amount of $20,350, remitted to $18,000, was Held not to be excessive. [76-7]
Practice — Withdrawal of juror — Witness not available — Circumstances.
4. Where it appeared that a nonresident important witness, who had agreed to testify for defendants, had left the jurisdiction without the knowledge of defendants, just before the trial; that during his presence in the city, upon defendants' persuasion, he had not been put under subpœna and his presence had not been disclosed to plaintiff; that plaintiff had made efforts to have the witness appear; and that there was no written statement of the witness disclosing that his testimony would have been helpful to defendants; it was Held that the trial court did not err in refusing to withdraw a juror. [73-5]
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
Appeal, No. 177, March T., 1947, from judgment of C. P., Allegheny Co., Jan. T., 1946, No. 3701, in case of Herman LaPosta v. John Himmer et al., individually and trading as John Himmer Transfer Company et al. Judgment affirmed.
Trespass for personal injuries.
The facts are stated in the opinion, by KENNEDY, J., of the court below, PATTERSON and KENNEDY, JJ., as follows:
The plaintiff, Herman LaPosta, brought this suit in trespass against John Himmer, Edward Himmer and Peter Himmer, individually and trading and doing business as John Himmer Transfer Company, averring that as a result of the negligence of one of their agents he was injured on August 23, 1944, at 2:30 P. M. on the premises of the Dravo Corporation, and while the plaintiff was an employee of this Company. This original defendant brought upon the record the Dravo Corporation as an additional defendant. The jury found a verdict in favor of the plaintiff in the sum of $20,350.00 against John Himmer Transfer Company, original defendant, and a verdict in favor of the Dravo Corporation by the direction of the Court. Counsel for the defendant has now moved for judgment n. o. v., or in lieu thereof, for a new trial, and it is the disposition of these motions that is now before us.
The accident involved in this suit occurred in what is known as the West Yard or "Left Field" of Dravo Corporation at its plant on Neville Island, this County. In this Yard there is a driveway which is improved with a black top surface having a width of 17 feet, and a berm, or additional driving space, of approximately 5 feet. This driveway runs in an easterly and westerly direction. On the southerly side of the driveway there was located a building known as the foreman's building, and which was a hundred feet in length and forty-seven feet wide. There is an elevated platform and an integral part of this building which runs along its northerly side, and at the westerly end of the platform there are a series of steps leading down to the ground. The defined black top surface roadway ends practically at the westerly end of this building and then the area to the south widens out and is surfaced with crushed slag. On the northerly side of this driveway was located a structure known as Platen No. 1, which was a platform on which boats or parts of L. S. T. craft were assembled, and this platform was 199 feet in length.
On the afternoon of August 23, 1944, at about 2:30 o'clock P. M., the plaintiff had been in the foreman's building, and as he left the same he walked down the steps located at the westerly end of the platform. He stopped at a point six or eight feet west of these steps, and at a point three or four feet south of the projection of a line representing the northerly side of the foreman's building. He was facing west and talking with his superior, Mr. Cash, for an appreciable time. He intended to cross over the cartway in a northerly direction to the Platen. He pivoted his left foot towards the north and east without moving his body any perceptible distance in a northerly direction, when the left front wheel of a tractor truck owned by the partnership defendant, and operated by its agent on its business at the time, ran into his right foot and ankle, causing him to fall to the ground. The truck immediately came to rest with the left front wheel on the plaintiff's right foot and ankle. West of the foreman's building there was no well defined cartway and trailer tractors and other motive equipment did travel in this so called "Left Field" in connection with the business of Dravo Corporation. The plaintiff did not look over his shoulder to the east before commencing to pivot. The truck of the partnership defendant was moving slowly from the east and was over on the extreme left side of the cartway or a prolongation thereof west of the office building at the time of the accident. The left front wheels were cocked after the accident towards the southwest.
The driver of the trailer tractor admitted that he saw the plaintiff and Mr. Cash standing; that it was a dry, clear day; that he did not sound his horn, and that it was his intention to bring the front of his unit to a stop at a point about three feet north of where the plaintiff was standing. (He stated that the plaintiff was facing south and that he suddenly wheeled to his right and stepped with his right foot directly into the left front wheel of the truck, in consequence of which the left front wheel ran on the plaintiff's right foot and ankle and then was brought to a stop).
The motion for n. o. v. is based on the argument that the plaintiff was guilty of contributory negligence as a matter of law, or that the negligence of the defendant was not the proximate cause of the accident. By giving every favorable inference to the plaintiff, as he is entitled to receive on a motion for judgment n. o. v., it is patent that he could not be charged with contributory negligence as a matter of law. He was lawfully on the premises where the accident occurred. He was in plain view of the partnership defendant's driver. He would have no right to anticipate that a truck coming from the east would invade the left side of the roadway without giving any warning of that fact. His evidence, and it is corroborated by at least one eye witness, is to the effect that at no time did any part of his body, with the possible exception of his right foot, move towards the north before he was struck and his leg injured. As a matter of fact, in pivoting, as the plaintiff stated he did and so demonstrated to the jury, he would be pulling his body further to the south at the time the accident occurred. Had he not moved the left front part of the truck would have struck him in the middle or the left side of his back. The cases cited by the defendant, Covaleskie v. Schimpf, 322 Pa. 65, and Dando v. Brobst, 318 Pa. 325, have no application to the facts in this instant case. In order to apply the law in those cases to this proceeding we have to infer that the plaintiff pivoted and then took one or two steps directly north into the path of the slow moving truck. This was the defendant's theory of the case, as testified by its only witness, Gerde, as to how the accident occurred, and he was the driver of the truck. The jury, by its verdict, put no credence in this part of his testimony, at least. The jury could readily have concluded that the negligence of the defendant was the proximate cause of the accident in that the defendant was driving the truck on what ordinarily would be termed the wrong side of the road; that he failed to give the plaintiff warning of his approach, and that the truck ran into the plaintiff and not that the plaintiff stepped into the pathway of the truck. Therefore, defendant's motion for judgment n. o. v. will be overruled.
The motion for a new trial cites various reasons. There is no merit to the reason that the verdict is against the weight of the evidence and same was not particularly pressed either at the oral argument or in the brief filed. Another reason is that the Court erred in refusing to withdraw a juror on motion of counsel for the defendant due to the fact that William Cash, a witness for the defendant, who had agreed to testify for the defendant, left the jurisdiction of the Court without the knowledge of the defendant. This witness resided in South Carolina at and before the time of the trial. The plaintiff was as anxious to have him come for his witness as probably was the defendant. He is the man who was talking with the plaintiff just before the accident occurred. The defendant persuaded him to come to Pittsburgh and it is claimed that he was here from January 7, 1947, until the night of January 13, when without giving any notice to defendant's counsel he boarded a plane and returned to his home in South Carolina. During all this period he was not put under subpœna and his presence here in Pittsburgh was not disclosed to the plaintiff or the plaintiff's counsel. No written statement or deposition of this witness has yet been submitted to us that would disclose that his testimony would have been helpful to the partnership defendant or that if a new trial were granted that he would be in attendance at it. All of this situation was discussed in chambers and put into the record, and appears on pages 166 to 170, and 189 to 207. The plaintiff's case was delayed in trial for two years because Mr. Cash was in the military service. In the plaintiff's case in chief a Mr. Morgan, investigator for plaintiff's attorneys, was called as a witness to explain the efforts that he had made to have William Cash come from Spartansburg, S.C., to be a witness. The purpose was that later no adverse comment could be made from the lack of explanation for this probable eye witness' not being called. At that time counsel for the partnership defendant did not disclose that Cash was here in Pittsburgh and that he was kept away from the Court room, and this witness Morgan was interrogated as to what conversations he had had with Cash. Before refusing the partnership defendant's motion to withdraw a juror the Trial Court had counsel for the plaintiff agree of record, and of course in chambers, that he would in no way comment upon Cash not being called as a witness or in connection with the cross examination of the witness Morgan. He strictly complied with this pledge in his final summation. The Trial Court also, without mentioning names, instructed the jury that they were to find the facts from the evidence given by the witness in the Court room and were not to go beyond that evidence and do any speculating as to what possibly witnesses who were not called would have said. It is, therefore, our conclusion that the Trial Court acted within judicial discretion in refusing the motion to withdraw a juror. Even though Mr. Cash's testimony would have leaned towards the defendant's theory as to how the accident occurred it would only have been corroborative of the testimony of the driver and there would be no reasonable assurance that his testimony, if heard at a retrial, would change the result.
An additional reason for a new trial is that the Court erred in directing a verdict in favor of the additional defendant, Dravo Corporation. The testimony of one of the partnership defendants, viz., Peter Himmer, was that this partnership for many years held a certificate of public convenience from the State Utility Commission and was a public carrier; also that for many years Dravo Corporation had employed the use of their trucks both within and without the plant grounds, and that the posted tariff rates were paid by Dravo Corporation. Mr. Himmer's evidence is further clear that his Company acted as an independent contractor and that Dravo Corporation exercised no control over the manner in which the drivers of the trucks were operated. The fact that Dravo Corporation might have called the attention of the drivers of these trucks to the safety rules in vogue in the plant, and the speed limitations, etc., in no way would such evidence allow the jury to be permitted to infer that Dravo Corporation had the right to exercise either complete or joint control over the driver of this truck that caused the injury to the plaintiff. The factual and inferential features of the case of Siidenkum v. Animal Rescue League of Pittsburgh, 353 Pa. 408, now relied upon by the defendant in connection with this reason, are in no way analogous to the evidence of alleged joint control educed in this proceeding. Therefore, the law as set forth in that opinion has no application here. It is our conclusion that the Trial Court had no option other than to honor the Dravo Corporation counsel's written request for a directed verdict as to that defendant.
Another reason for a new trial is that the Court erred in its charge to the jury in connection with summarizing the evidence to support the plaintiff's case. We have carefully gone into this reason and find that it is not supported in the charge. It also appears that the charge carefully conserved all of the rights of the partnership defendant, and these instructions as to this were most favorable. The jury was told that if it believed the partnership defendant driver's testimony that it should find a verdict in favor of that defendant. The jury was permitted to return a verdict in favor of the defendant on any one of three possible theories, viz.: 1. That the accident was the result solely of the plaintiff's negligence. 2. That the plaintiff was chargeable with contributory negligence. 3. That the injuries sustained by the plaintiff were the result of an unavoidable accident. Therefore, we find the complaints as to the charge of the Trial Court to be unmeritorious.
The final reason for a new trial is that the verdict is excessive. The plaintiff at the time of the accident was 29 years of age, in good health, had been a rigger for the Dravo Corporation and then moved up to a semi-foreman position known as a "pusher". He sustained spiral fractures of both bones of the right leg just above the ankle. Considerable difficulty was experienced in getting one of these bones to knit, finally requiring an opening of the leg and the insertion of a steel plate. He suffered considerable pain for months. He attempted to return to work even when on crutches, and later to do the work of a rigger, but found in this latter work that that was impossible for him and extremely dangerous to his fellow employees. The limitation of motion of the right foot is permanent, and the right leg is shortened. Doctors stated that he will never be able to carry on the work of a rigger again and, therefore, because the plaintiff's formal education was limited to the completion of the fifth grade, his probable means of livelihood will be the unskilled labor classification, or even nondescript classification. At the time of the accident he was averaging $90.00 per week. At the time of the trial and for some considerable period earlier he was employed as a flunky at a gasoline filling station at a wage of $43.00 per week. The evidence supports the fact that up until the time of trial for hospital, doctor bills, and loss of wages, he was out of pocket the sum of a little more than $6,000.00. There is no doubt that the major claim for damages by the plaintiff was for partial loss of future earning power. The proofs in connection with this item supported its authenticity. However, an overall consideration leads us to the conclusion that the verdict is somewhat excessive but in no way indicates that the jury acted in an arbitrary or prejudicial manner by returning same. We are of the opinion that if the plaintiff is willing to file a remittitur of all of the verdict in excess of $18,000.00 that a new trial should be refused, otherwise granted. Orders refusing judgment n. o. v., and also a new trial, if the plaintiff will file a remittitur, will be entered.
Defendants appealed.
Sanford M. Chilcote, with him Dickie, Robinson McCamey, for defendant, appellants.
E. V. Buckley, with him Mercer Buckley, for plaintiff, appellee.
Samuel W. Pringle, with him Dalzell, McFall, Pringle Bredin, for additional defendant, appellee.
All of the alleged errors covered by the appellants' assignments on this appeal were painstakingly considered and correctly disposed of by the learned court en banc. As nothing is to be gained by our reiterating either the facts or the law, the judgment will be affirmed on the opinion of Judge KENNEDY for the court below.
Judgment affirmed.