Beal v. Reading Co.

Opinion by

Mr. Justice Allen M. Stearne,

In this trespass action for personal injuries both sides have appealed. Plaintiffs’ appeal is from an order granting a new trial, following a jury’s verdict for plaintiffs. The refusal of defendant’s motion for judgment non obstante veredicto is the cause for the other appeal.

Where a defendant, as here, moves not only for a new trial but for judgment n.o.v., he places himself in rather an anomalous position. If his motion for a new trial is granted, it automatically disposes of the motion for judgment n.o.v. But this situation frequently has been before this Court. On appeal from an order of a trial court granting a new trial and discharging a motion for judgment non obstante veredicto, the appellate court will not reverse and enter judgment for defendant, unless it is convinced that the court below abused its discretion in awarding a new trial, especially where the appealing party is the one who prayed for and was awarded a new trial: Tupponce v. Pennsylvania Railroad Company, 358 Pa. 589, 57 A. 2d 898. See also Fornelli v. Penna. R. R. Co., 309 Pa. 365, 369, 164 A. 54; Kuhler v. Harrison Construction Co., 361 Pa. 100, 62 A. 2d 853; Streilein v. Vogel, 363 Pa. 379, 69 A. 2d 97; Carroll v. Pittsburgh, 368 Pa. 436, 84 A. 2d 505.

Before considering defendant’s motion for judgment n.o.v. it is therefore necessary to pass upon the question whether defendant’s motion for a new trial was properly granted. In Tupponce v. Pennsylvania Railroad Company, supra, Mr. Chief Justice Drew (then Mr. Justice Drew ) accurately and concisely stated the rule, page 590: “ ‘ “We will not reverse an order awarding a new trial unless a palpable abuse of discretion on the part of the trial judge is disclosed or unless an erron-' eons rule of law, which in the circumstances necessarily controls the outcome of the case, is certified by the trial judge as the sole reason for his action”: Marko v. Mendelowski, 313 Pa. 46, 169 A. 99’: Girard Tr. Co. v. Geo. V. Cresson Co., 333 Pa. 418, 422, 5 A. 2d 221.”

The trial judge has not stated that the sole reason for the grant of a new trial was his erroneous ruling of law in the trial, and no such claim is made. We therefore are concerned with but a single question, viz.: was it a palpable abuse of discretion for the court below to grant a new trial upon the sole reason that “the interests of justice require a retrial of the case”?

In Bellettiere v. Philadelphia, 367 Pa. 638, 81 A. 2d 857, Mr. Justice Steen made a comprehensive analysis of these principles. In a footnote he has collected a host of cases supporting them.

Where the reason assigned for the grant of a new trial involves the exercise of discretion, ordinarily the order of the trial court will not be interfered with, in the absence of palpable abuse of power: Class & Nachod Brewing Co. v. Giacobello, 277 Pa. 530, 121 A. 333, cited with approval in Bellettiere v. Philadelphia, supra. But as stated by Chief Justice Maxey in Jones v. Williams et al., 358 Pa. 559, 58 A. 2d 57, p. 564: “While this Court usually supports the action of the trial court in granting or refusing a new trial we do not entirely abdicate our reviewing functions in such cases. This Court, too, has the duty to determine from the record whether or not the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice and to make the award of a new trial imperative so that right may be given another opportunity to prevail.” This quotation was repeated with approval in Decker v. Kulesza, 369 Pa. 259, 263, 85 A. 2d 413.

One who seeks to reverse the action of a trial court in granting a new trial assumes a heavy burden. Appellate courts are reluctant to interfere with such exercise of judicial discretion. It is only where such discretion has been exercised capriciously, arbitrarily, improvidently or has been palpably abused that we will reverse. A trial court, however, must give reasons for its action, otherwise an appellate court would be unable to review such action. Mere conclusions such as “interests of justice” are insufficient. All judicial process necessarily is in the interest of justice. Such conclusion, in the absence of amplification, could well serve as a cloak or shield for abused judicial discretion.

Since the learned court below in the present case failed to give its reasons for granting defendant’s motion for new trial, stating only its conclusion that “the interests of justice require a retrial”, we are obliged to examine the entire record to determine whether any valid reason exists for disturbing the jury’s verdict: Bellettiere v. Philadelphia, 367 Pa. 638, 81 A. 2d 857; Carroll v. Pittsburgh, 368 Pa. 436, 84 A. 2d 505; Decker v. Kulesza, 369 Pa. 259, 85 A. 2d 413. We make this study unaided by any comment from the trial court on credibility of witnesses, quality of testimony, or any of the many other matters which might have guided the court in exercising its judicial discretion. So far as the record reveals, no facts are in dispute, and no issue of credibility or weight of testimony exists which requires the submission of this case to another jury. We will therefore reverse the order granting a new trial.

Defendant’s appeal from the order refusing its motion for judgment n.o.v. raises the question whether the established facts reveal, as matter of law, 'that defendant was not responsible for plaintiffs’ injuries.

Angelina Beal, and' her husband, John Beal, the plaintiffs, sued the Reading Company, the defendant, to recover damages for injuries suffered by the wife-plaintiff on December 24, 1942, caused by a fall into a hole located within the lines of a state highway that passed over a cut and bridge over and across the right of way and tracks of the defendant railroad company.

Over ninety years ago, in 1857, the defendant, on its own land and right of way, made a cut eighty-seven feet in width and forty feet in depth through which it laid its railroad tracks, and over which it has since actively operated its railroad. Fifty-six years after such construction, in 1918, the Commonwealth of Pennsylvania condemned for a state highway a fifty foot wide strip of land running approximately at right angles to the defendant railroad’s right of way on which it built a state highway; the state constructed a bridge with a span of eighty-seven feet over the cut; the cartway over the bridge was seventeen and eight-tenths feet wide; and a footwalk approximately six and one-half feet wide on the west side of the bridge was separated from the cartway by a low sturdy metal wall. Along the edge of the highway approaching the bridge, at the top of the railroad embankment, the highway department constructed a guard fence composed of two wire cables supported by wooden posts. Since only thirty of the fifty feet condemned by the state are actually paved or used for highway purposes, land owned by the state extends about fifteen feet beyond the guard fence onto the cutout constructed by the railroad company. The guard fence is thus well within the boundary of land owned and maintained by the highway department. The hole into which plaintiff stepped was located about fifteen or twenty feet from the northeast corner of the bridge, on the highway side of the guard fence. It was about two or three feet deep and was the upper extremity of a washout which extended all the way down the. bank of the . railroad cut. Plaintiff was injured when she moved back from the traveled portion of the highway to avoid a passing automobile, stepped into the hole, slipped under the guard fence, and fell to the foot of the embankment. It is undisputed that the cause of the hole in the highway was the erosion of the surface by rainwaters washing down the embankment.

The chief theory of defendant’s liability advanced by plaintiffs is that the defendant railroad owed a duty of lateral support to the highway. It is argued that such erosion of the surface constitutes a subsidence and demonstrates defendant’s failure to provide lateral support to the highway. Such argument, while novel and ingenious, is unsound.

An adjoining landowner incurs liability only by withdrawing lateral support. He is under no duty affirmatively to supply lateral support. See Restatement, Torts, sec. 817 et seq. The force of this rule as it applies to highways is set forth in 3 Nichols on Eminent Domain (3rd ed.) sec. 9.221 [1], Limitation upon use of adjacent land: “. . . after the taking the owner cannot lawfully injure or destroy the public work erected thereon, even by a use of his own land that would be lawful as against an adjoining owner.. ..

“. . . the establishment and construction of a highway or a railroad imposes upon adjacent land the burden of supporting the completed structure and the vehicles travelling thereon, so that the adjoining owner cannot lawfully remove such support by excavations upon his oavu land and impair the safety or convenience of travel upon the public easement.” (Emphasis supplied)

A landowner incurs no liability for subsidence of his neighbor’s land so long as he does nothing to change the contour of his own property. It is true that the defendant railroad company over ninety, years ago did change the natural contour of its land when it dug this cut, but it did so at a time when it held title to all the land in question. When the state later condemned a portion of the defendant’s land for a highway, it only acquired the right to have Reading Company refrain from interfering with the lateral support for the highway provided by the land as it then existed. There is no evidence that the terms of the condemnation proceeding required the company to take any affirmative action to provide lateral support. For this reason, Ligonier Valley Railroad Company v. Public Service Commission, 83 Pa. Superior Ct. 502, relied on by plaintiffs, is inapposite. There the Public Service Commission had, pursuant to proper statutory authority, imposed upon the railroad company the obligation of paying for the bridge over its right of way and maintaining the same. No such obligation is here involved. A fresh act of condemnation would be required to impose it. It has always been the rule that a sovereign acquires by condemnation only those rights for which it pays. Thus in Pennsylvania Coal Company v. Mahon, 260 U. S. 393, 43 S. Ct. 158, the Supreme Court held unconstitutional, as an improper exercise of the police power, a Pennsylvania statute forbidding mining in such a way as to cause subsidence when the right to mine without providing support had been expressly reserved in the deed to plaintiff. At page 415 Justice Holmes said for the court: “The rights of the public in a street purchased or laid out by eminent domain are those that it has paid for. If in any case its representatives have been so short sighted as to acquire only surface rights without the right of support, we see no more authority for supplying the latter without compensation than there was for taking the right of way in the first place and refusing to pay for it because the public wanted it very much.”

Since there is no evidence here that the condemnation imposed an affirmative duty on the railroad company, it cannot be held liable for any subsidence of the highway caused by water running down the embankment unless plaintiff demonstrates that the company so altered the condition of the bank after condemnation as to cause the erosion. This record is absolutely barren of any such evidence.

It is true that plaintiffs’ witness, Joseph Trunk, at first testified that the erosion began at the bottom and worked its way up the side of the bank and that from time to time the railroad company removed the accumulated dirt from its right of way. If this were true, then the jury might have been permitted to infer that the removal of this dirt froi|i the tracks was the chief cause for the erosion. But on cross-examination the witness admitted he only surmised that this was the way the erosion occurred. He said: “But when I saw it, the gully was there. ... It looks as though it formed at the bottom first because there was more dirt at the bottom than there was at the top.” With the witness’s testimony thus nullified by his own admission, there is nothing in the record to negative the conclusion from common experience that this erosion began on land owned by the State as rainwaters poured over the lip of the bank and carried loose dirt along. Such conclusion is supported by the fact, introduced into evidence without objection, that the defect was later cured by a stone wall erected by the highway department at its own expense at the top of the bank. Plaintiffs cannot escape the force of Reading Company’s argument that they produced no evidence to show that anything which happened at the bottom of the embankment on railroad property could have caused the erosion at the top of the state highway. Thus the plaintiffs have failed to sustain their burden of proving a causal connection between the hole in the highway and any activity of defendant. Defendant is therefore entitled to judgment n.o.v.

Plaintiffs’ failure to establish causation disposes of their other argument, viz.: that defendant is responsible for maintaining a dangerous condition close to the highway. Since plaintiffs did not show that defendant caused this hole in the highway, McCarthy v. Ference, 358 Pa. 485, 58 A. 2d 49, relied on by them, is inapposite. In that case and the many cases cited therein, it was established that defendants had done something on their own land to cause a dangerous condition on a public highway.

Since we have determined that plaintiffs failed to establish a prima faq^e case, it becomes unnecessary for us to pass upon the wife-plaintiff’s alleged contributory negligence.

The order for new trial and order dismissing defendant’s motion for judgment are reversed and judgment is here entered for defendant non obstante veredicto.