
    Moraski et al. v. Philadelphia Rapid Transit Co. et al., Appellants.
    
      Negligence — Street railway — Automobiles—Joint tort-feasors— Collision between trolley car and owner of truck — Injury to passenger in car — Measure pf liability of each defendant — Act of June 29, 1928, P. L. 981.
    
    1. Where a passenger in a trolley car is injured by a collision between the car and a motor truck, and it is shown that the car was operated at a high rate of speed without proper signals, and that the truck was driven at high speed in front of the car at a crossing, the injured passenger may sue both the railway company and the owner of the truck in a joint action, and under the evidence recover judgments against them both.
    2. In such a case the owner of the truck cannot maintain that it was error to permit a joinder of himself with the railway company, because the latter, as a carrier, was under a greater responsibility to the passenger than he himself was.
    
      3. It is not error in such case for the court to refuse to charge that the responsibility of the carrier to a passenger is higher than the owner of the truck.
    4. U)nder the Joint Tort Act of June 29, 1928, P. L. 981, it is the duty of the trial judge, in case of doubt, to submit to the jury the question whether the injury was the result of concurrent negligence, but, where concurrent negligence is established, joint recovery may be had.
    
      Negligence — Damages — Excessive verdict — Discretion—Abuse of — When appellatte court will act.
    
    5. The appellate court will not set aside a verdict as excessive unless the amount thereof is so grossly exorbitant as to be clearly unjust, and the refusal to grant relief below evidences an abuse of discretion.
    6. In this case, under the evidence, a verdict of $6,500 for a girl eighteen years old seriously injured, and one for $3,000 for her father, were held not excessive.
    Argued April 16, 1928.
    BefoTe. Frazer, Walling, Simpson, Kephart, Sadler and Sohafeer, JJ.
    Appeals, Nos. 127, 128, 133 and 134, Jan. T., 1928, by defendants, from judgments of C. P. No. 5, Pbila. Co., Dee. T., 1924, No. 10640, on verdicts for plaintiffs, in case of Prances Moraski, by her father and next friend, and Frank Moraski, in his own right, v. Philadelphia Rapid Transit Co. and Raymond L. Harper et al., trading as United Motor Freight Co.
    Affirmed.
    Trespass for personal injuries. Before Monaghan, J.
    The opinion of the Supreme Court states the facts.
    Verdict for Frances Moraski for $22,000 on which judgment was entered for $6,500, and verdict and judgment for Frank Moraski for $3,000, in opinion by Martin, P. J. Defendants appealed.
    
      Errors assigned were judgments, quoting record.
    
      George E. Detweiler, with him J. J. K. Gashie, for appellant. —
    Where the accident to a passenger comes from an external source, the burden of proving want of care on the part of the carman is on the passenger: Laing v. Colder, 8 Pa. 479; Mackowski v. Transit Co., 265 Pa. 34; Federal Street, etc., Ry. v. Gibson, 96 Pa. 83; Tilton v. Transit Co. 231 Pa. 63; Cline v. Rys., 226 Pa. 586; Harkins v. Transit Co., 286 Pa. 465; Uffelman v. Transit Co., 253 Pa. 394.
    
      Wm. W. Smithers, for Raymond L. Harper et al., appellants. —
    The case would not seem to be within the purview of the Joint Suit Act of June 29,1923, P. L. 981.
    There was a material tendency to prejudice the freight company defendant in the absence of a definite distinction being drawn between the duties owing by the two defendants.
    The yerdict as reduced was excessive: Howarth v. Express Co., 269 Pa. 280; McCrosson v. Transit Co., 283 Pa. 492.
    
      Grover G. Ladner of Ladner & Ladner, for appellees.
    ■ — This case is within the purview of the Joint Suit Act of June 29, 1923, P. L. 981: Cleary v. Cab Co., 285 Pa. 241; O’Malley v. Transit Co., 248 Pa. 292; Downey v. R. R., 161 Pa. 588; Goorin v. Traction Co., 179 Pa. 327; Gorman v. Charlson, 287 Pa. 410.
    The liability of the defendant Motor Freight Co. resulted from its own negligence, and if there were negligence it could not be relieved merely because the transit company failed in its duty to exercise the higher degree of care which it owed to its passenger: Harkin v. Transit Co., 278 Pa. 24.
    The yerdict as reduced was not excessive: Boyle v. Transit Co. 286 Pa. 536; Dziak v. Swaney, 289 Pa. 246.
    May 7, 1928:
   Opinion by

Mr. Justice Sadler,

Frances Moraski, a minor aged eighteen, by her father and next friend, and her father in his own right, brought an action against the United Freight Motor Company and the Philadelphia Rapid Transit Company, claiming that, by reason of tbe joint negligence of tbe defendants, tbe daughter bad sustained serious injury. Verdicts were rendered in favor of Frances for $22,000, and for tbe father in tbe sum of $3,000. Later, tbe court in banc reduced tbe former to $6,500, and judgments were entered for tbe amounts mentioned against tbe two defendants. Each has appealed in both cases, assigning, in part, tbe same errors, and tbe four appeals were heard as one, and will be disposed of together.

Tbe facts involved are not complicated. Tbe plaintiff, an employee of a hosiery mill, entered tbe car of tbe transit company as a passenger, intending to go to her usual place of work. It proceeded west along Allegheny Avenue at a rate of speed found by tbe jury to be excessive under tbe circumstances. Jasper Street, crossing at right-angles, was approached without tbe sounding of a gong, or tbe giving of other warning. As it was reached, a truck of tbe United Freight Motor Company advanced from tbe right, moving north on tbe intersecting highway at a rapid rate. Though tbe oncoming trolley was in sight, tbe driver attempted to cross in front, and bad reached tbe second rail, when tbe rear of tbe automobile was bit. Though weighing, with its load, twelve tons, tbe force of tbe impact was such as to cause it to overturn, after first moving across tbe avenue to tbe northwest corner. Plaintiff, with other passengers in tbe car, was thrown as a result of tbe collision, suffering injuries, for which damages were asked.

There was no question of contributory negligence on tbe part of plaintiff, and tbe controversy resolved itself into tbe determination as to which defendant had, by its negligent conduct, caused tbe injury, or whether fit resulted from tbe concurrent act of both. Under careful instructions, tbe jury found tbe latter to be tbe fact, and rendered verdicts accordingly. There was evidence to show a lack of due care on tbe part of tbe transit company, and tbe same can be said of tbe codefendant. Evidently tbe motorman thought be had superior rights on the highway, but this did not relieve him from the duty to use due care to prevent the impending collision: Woomer v. Altoona & L. V. E. Ry. Co., 80 Pa. Superior Ct. 261. On the other hand, the driver of the truck apparently believed he was entitled to the right of way ?ince he was approaching the intersection, at the same time, from the right (Act June 30, 1919, P. L. 678), but this did not justify him in proceeding without proper caution: Alperdt v. Paige, 292 Pa. 1. There was sufficient evidence to show negligence by both parties, which concurring caused the accident. Without further discussion, the first assignment of error of the transit company, in which complaint is made of the failure of the court below to grant its motion for a new trial because of lack of sufficient proof of carelessness to justify a verdict in so far as it, was concerned, must be dismissed. It cannot be said that there was an abuse of discretion in refusing to granj; this request, and it is only in such case that we will ihterfere: Schuck v. West Side Belt R. Co., 283 Pa. 152.

The negligence of which the car company was guilty is found in the dangerous speed at which the trolley moved in a congested city district, without giving warning at the cross street, but this in itself did not cause the injury to the passenger. The lack of care of the freight company rested on the failure of the driver of its truck to observe caution in crossing Allegheny Avenue in front of the trolley, which was advancing in plain sight, but this alone did not result in harm to the plaintiff. “What injured her was the collision, which was the direct result of the combined negligence of the two defendants, and, for the immediate consequences of what they jointly brought about, they are and ought to be jointly accountable, even though the plaintiff might have sued them separately, joint wrongdoers being liable both jointly and severally”: O’Malley v. P. R. T. Co., 248 Pa. 292; Harkin v. Toy and P. R. T. Co., 278 Pa. 24, 30. In this case, the jury has found both parties negligent, and, if so, their concurrent act undoubtedly resulted in the collision, without which plaintiff would not have been injured. They are, therefore, jointly liable for the consequences directly arising from it.

The freight company here complains of its joinder with the Philadelphia Rapid Transit Company as a defendant, and, having been so made a party, to the refusal of the court below to continue the trial of the case on the ground of misjoinder. It was contended that the parties could not be made codefendants, since the carrier owed to plaintiff a higher degree of care than did the owner of the motor vehicle. To the overruling of this objection, and the refusal to answer a point stating that the transit company was under greater responsibility toward its passenger than was the freight com-, pany, three assignments of error have been directed by the latter.

In Bunting v. Hogsett, 139 Pa. 363, 376, an action against a wrongdoer for injury to a passenger in a train, a preyious action against the carrier having been decided adversely to plaintiff (Bunting v. R. R. Co., 118 Pa. 204), it was said: “If a person is injured by the concurrent and contributory negligence of two persons, one of them being at the time the common carrier of his person, there is no reason, founded in public policy or otherwise, which should release one of them and hold the other. It is true, the carrier may be subjected to a higher degree of care than his cotort-feasor, but this affords no reason why either or both of them should not be held to that degree of care, respectively, which the law imposes upon them, and to be answerable in damages accordingly. The general rule undoubtedly is, if a person suffers injury from the joint negligence of two parties, and both are negligent in a manner which contributes to the injury, they are liable jointly and severally, and it would seem in principle to be a matter of no consequence that one of them is a common carrier. Neither the comparative degrees of care required, nor the comparative degrees of culpability established, can affect the liability of either.”

The right to sue two parties responsible for the injury has long been established in Pennsylvania. Ptior to 1923, in such a joint action, a nonsuit could not be entered as to one alone, or a verdict so rendered, where the evidence showed the other not to be responsible. This is no longer true, however, since the passage of the Joint Suit Act (June 29, 1923, P. L. 981), procedural legislation which has found approval in this court: Cleary v. Quaker City Cab Co., 285 Pa. 241. It is now the duty of the trial judge in case of doubt to submit to the jury the question whether the injury was the result of concurrent negligence, as was done in the instant case. Both before and since that act, where concurrent negligence was shown, joint recoveries have been sustained. Such judgments have been upheld where the defendants were an owner and an independent contractor (Gorman v. Charlson, 287 Pa. 410), two carriers (Downey v. Traction Co., 161 Pa. 131; Goorin v. Traction Co., 179 Pa. 327), or a common carrier and the owner of a truck or other vehicle: O’Malley v. P. R. T. Co., supra; Cleary v. Quaker City Cab Co., supra; Harkin v. Toy and P. R. T. Co., supra. But appellant urges that these are not cases where a passenger was injured in a vehicle of one of the defendants, who was a carrier owing a higher degree of care to plaintiff than did the other tort-feasor. Such situation is found in Goldman v. Mitchell-Fletcher Co., 285 Pa. 116, and in Caplan v. P. R. T. Co., 92 Pa. Superior Ct. 251.

Objection is also made to the refusal of the court to charge, as requested in a point presented, that the responsibility of a carrier to a passenger was higher than that of the owner of the truck, who was bound to use reasonable care only. The refusal of the request did the freight company no harm. If the verdict had been adverse to plaintiff, she might have complained that, as to one of the defendants, there was a greater responsibility than defined in the charge, but no one else could have been injured by the omission. The question for the jury was whether the loss was the result of a joint negligence of the two defendants, and, as to this, adequate instructions were given, with admonition that, if either was not guilty of any negligence, or did not participate in a joint tort contributing to the accident, no recovery could be had against such party. The charge was sufficient (O’Malley v. P. R. T. Co., supra, p. 298) and no error was committed in declining to read the third point, which would have tended only to confuse.

Both appellants present assignments asserting the ex-cessiveness of the damages awarded. It is the duty of the court below to see that no oppressive verdict is permitted to stand, and, if so large as to indicate that the jury has misused its power, to set aside or cause it to be reduced: Goldman v. Mitchell-Fletcher Co., supra. But the appellate court will not interfere in such cases unless the amount named is so grossly exorbitant as to be clearly unjust, and the refusal to grant relief below evidences an abuse of discretion: Dziak v. Swaney, 289 Pa. 246; Petrie v. Kaufmann & Baer Co., 291 Pa. 211. In the instant case, it is apparent that the court in banc scrutinized the testimony, as was its duty, to prevent the entry of an unreasonable judgment. It reduced the verdict rendered from $22,000 to $6,500, and we cannot say that there was no testimony to justify such award. The plaintiff was earning $25 a week at the time of the collision, and had not recovered when the trial took place. She had been in good health before the accident, and has since suffered from various injuries described by her physician. The court below was convinced of loss to the extent of the recovery permitted, and the amount finally allowed is not so large as to justify interference by us. A like conclusion is reached in the case of the judgment for the father in the sum of $3,000. His daughter’s wages from the time of the injury to her majority, 117 weeks in all, with the sum paid for medical expenses, would equal this amount, and, until the date of trial, he had furnished her support.

The judgments in the four appeals, entered to Nos. 127, 128, 133 and 134, January Term, 1928, are affirmed.  