Edwards v. Western Maryland Ry. Co. , 268 Pa. 228 ( 1920 )

Opinion by

Mr. Chief Justice Brown,

On an averment in its affidavit of defense, that the plaintiff had been guilty of laches in the prosecution of his action, the court below directed judgment of non pros. Assuming the situation to be as set forth in the affidavit of defense, the judgment from which the plaintiff has appealed was improvidently entered. This is manifest from a recital of what the defendant avers as showing laches barring the plaintiff from further prosecution of his suit.

The appellant, who was a conductor in the service of the defendant, was injured December 17, 1914, by the derailment of a train in his charge. On August 18, 1915, he brought an action against the defendant in the Court of Common Pleas of Allegheny County to recover damages for the injuries sustained. On January 29, 1918, that action was dismissed by the court, and, during the pendency of the motion to dismiss, the plaintiff brought the action before us in the Court of Common Pleas of York County. It was brought two days before the statute had barred a recovery, and was evidently, and very properly, instituted ex majori cautela to guard against the contingency of a dismissal of the suit in Allegheny County, which was dismissed several weeks later, and, but for the institution of the present action, the appellant would be barred from recovering, if he has a just claim against the defendant. During the pend-ency of the motion to dismiss the action in the Allegheny County court there was no reason why the plaintiff should have speeded the trial of his action in the court below, for the motion to dismiss might have been overruled. On December 29, 1918, — less than eleven months from the time the action in the Allegheny County court was dismissed — he filed his statement of claim in the court beloAV, and this was held to be laches calling for a judgment of non pros. The question of laches does not depend, as does the statute of limitations, upon the fact that a certain definite time has elapsed since the cause of action accrued, but whether, under the circumstances of the particular case, plaintiff is chargeable with want of due diligence in failing to institute or prosecute his proceeding: Townsend v. Vanderwerker, 160 U. S. 262. This has been the recognized rule with us; and none of our cases sustain the court below. As just shown, there was no laches, but, on the other hand, there was good reason in delaying the institution of the present action, and, with no rule of court requiring the plaintiff to file a statement Avithin a specified time, and with the right in the defendant to rule him to file it, the judgment of non pros, on the ground of laches was a clear abuse of discretion.

Waring Brothers & Company v. Pennsylvania Railroad Company, 176 Pa. 172; Munley v. Sugar Notch Borough, 215 Pa. 228, and Stewart v. Philadelphia, 240 Pa. 569, are cited by the court below as authorities for its action in dismissing the plaintiff’s suit. We are at a loss to understand how they could have been so regarded. In the first, the summons was issued in 1879, but nothing more was done until 1894, when the plaintiff’s statement was filed; in the second, a period of more than eight years intervened between the institution of the action and the filing of the statement, and, in the third, the interval was more than twelve years.

In entering the judgment of non pros, against the plaintiff the learned court below said: “No explanation has been offered to the court other than his statement of claim which would excuse his slothfulness of action.” The explanation is to be found in the court’s own records, as we have just shown; but if, as would have been the proper practice (Forrest v. Phila. Rapid Transit Company, 261 Pa. 383), a rule had been taken on the plaintiff to show cause why the judgment should not be entered, he might, on answer, have explained even more fully why the severe penalty should not have been imposed.

The assignment of error is sustained, the judgment Is reversed and the action reinstated with a procedendo.