Murphy v. Pittsburgh Railways Co.

Dissenting Opinion by

Mr. Justice Cohen:

I must dissent from that portion of the majority opinion which enters judgment non obstante veredicto in favor of the additional defendants.

*257After hearing the evidence the jury rendered a verdict for the plaintiff against all defendants and the trial judge denied their motions for judgment notwithstanding the verdict. The applicable rule for review of a case in this posture is to “give the jury winner the benefit of every fact and inference of fact which may be reasonably deduced from the evidence”, Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A. 2d 440 (1965).

The jury could have reasonably found that the maintenance of an uncovered window well in a paved alley frequently used for pedestrian and vehicular traffic was negligence. Restatement 2d, Torts, §368; See Gift v. Palmer, 392 Pa. 628, 141 A. 2d 408 (1958).

The jury also could have reasonably found that the negligence of all defendants caused the loss for which suit was brought. The injuries suffered by Mrs. Murphy resulted from her fall into the window well and were not caused by impact from the bus. Apprehension of such an impact, however, directed her to the edge of the alley and precipitated her fall. Thus, additional defendants’ conduct was so substantial a factor in bringing about plaintiff’s injuries that, coupled with the foreseeability that to avoid oncoming traffic one might have to hurriedly approach the edge of the alley, original defendant’s negligence could not be an intervening cause sheltering additional defendants from liability. Restatement 2d, Torts, §447(a); Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A. 2d 123 (1957).