Pittsburg and Connellsville Railroad Co. v. McClurg

• Decision Date: 07 January 1868
• Parties: The Pittsburg and Connellsville Railroad Company <I>versus</I> McClurg.
• Court: Pennsylvania Supreme Court

56 Pa. 294

The Pittsburg and Connellsville Railroad Company versus McClurg.

Supreme Court of Pennsylvania.

November 13, 1867.

January 7, 1868.

November 13th 1867.

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent

Error to the District Court of Allegheny county: No. 79, to October and November Term 1867 G. Shiras, Jr., for plaintiffs in error, referred to New Jersey Railroad v. Kennard, 9 Harris 203; Todd v. Old Colony Railroad, 3 Allen 21; s. c. 7 Id. 207; N. Penna. Railroad v. Heilman, 13 Wright 60; Catawissa Railroad v. Armstrong, 2 P. F. Smith 286; Pennsylvania Railroad v. Ogier, 11 Casey 71; Same v. Zebe, 9 Id. 318; Hudson Railroad v. Ernst (N. Y.), Railway Times 1863, p. 362; Hazard v. Chicago B. & Q. Railroad, Id. 1865, p. 346.

J. A. Lowrie and T. M. Marshall, for defendant in error, cited N. Jersey Railroad v. Kennard, and Todd v. Old Colony Railroad, supra.

The opinion of the court was delivered, January 7th 1868, by THOMPSON, C. J.

The plaintiff below, as we learn from the very brief history of the case by the plaintiff in error, no portion of the testimony being given, was injured while a passenger in the cars of defendant, by reason of the protrusion of his elbow beyond the sill of the car window next to which he sat during the journey, or part of it, coming in contact with a car standing on a switch on the defendants' road. The plaintiff had a verdict on the ground of negligence on the part of the company, as we are informed, in carrying the plaintiff, by reason of which he was hurt, but in what the negligence consisted it is not easy to say, as neither the narr. nor its substance is given. Was it for negligence in constructing the switch? Or was it because the defendant had not barricaded its car windows? We do not know; but still, perhaps, we may be able to discuss the only point of importance presented, without knowing this.

Assuming the fact, or claiming that negligence on part of the company in performing their duty towards the plaintiff in carrying him had been proved, his counsel prayed the court below to charge as follows: —

"A passenger on a railway car who has unconsciously suffered his elbow to slip beyond the window sill is not necessarily guilty of negligence: N. J. Railroad Co. v. Kennard, 9 Harris 203."

This the learned judge unqualifiedly affirmed, doubtless on the authority of the case referred to in the point. He did right in following the precedent cited; even if wrong he was bound to do so. If, therefore, there was error in the instruction, it was not his fault.

That unconsciousness, arising from insensibility, the result of disease or injury, might qualify what would otherwise be negligence, may be conceded, but that would arise from the difference in the degree of care required on part of the carrier. If a passenger were known to be afflicted with epileptic fits, or was entirely insane, it would be reasonable to require of the carrier more care and attention than in the case of ordinary passengers; but then the carrier must know the condition of the passenger, and that extra care and control were necessary, and his duty. This, however, we need not discuss, for nothing like this existed in this case. We must regard the remark, "unconsciously suffering his elbow to slip out beyond the window sill," to mean inattentively. In that sense it was negligently suffered to slip. Of course, this was negligence in se, unless he was under no obligation to take care of himself. But no case asserts that, and every case the contrary. Out of the omission to do so springs the doctrine of contributory negligence, which defeats a plaintiff, and which is so firmly established as a principle of law that nobody dreams of doubting it. We have the case, then, broadly, I think, that negligence is not to be inferred, when injury accrues from an exposure of an elbow or an arm out of a car window, while the train is moving, if it be not wilfully done.

This cannot be maintained on any reasonable principle, we think. When a passenger on a railroad purchases his ticket it entitles him to a seat in the cars. In the seat, no part of his body is exposed to obstacles outside of the car. He is secure there, ordinarily, from any contact with them. Where he is thus provided with a seat, safe and secure in the absence of accident to the train, and the carrier has a safe and convenient car, well conducted and skilfully managed, his duty is performed towards the passenger. The duty of the latter on entering arises, namely, that he will conform to all the reasonable rules and regulations of the company for occupying, using and leaving the cars; and, after doing so, if injury befall him by the negligence of the carriers, they must answer; if he do not so conform, but is guilty of negligence therein, and is injured, although there may be negligence on part of the carriers, their servants and agents, he cannot recover: Sullivan v. Read. Railroad Co., 6 Casey 234; The Penna. Railroad Co. v. Zebe and Wife, 9 Id. 318, and other authorities. In the latter case we said what is quite apposite to this: "We hold on these principles, that the company's liability could not be fixed for the injury consequent on a choice of the passenger in disregard of the provisions made by it for his safety. It was, we think, error in the court to submit the question of the right of the parties to leave the cars at either side to the jury in the absence of proof or justifying necessity for so doing. It was not negligence on the part of the company, that they did not by force of barriers prevent the parties from leaving at the wrong side. People are not to be treated as cattle; they are to be presumed to act reasonably in all given contingencies, and the company had no reason to expect anything else in this case."

Here the duty of care on the part of the passenger is asserted; and it was a case in which two passengers, the plaintiff and son, instead of leaving the cars by the platform on the station, left on the opposite side, and the son was killed by a passenger train on the other track. We held that this was negligence in se on part of the passengers, and, in the absence of circumstances justifying the exit on that side of the car, the court erred in not charging that it was negligence in law. The authority of this case has not been shaken in this particular. We have repeatedly held that it is the duty of courts in cases of clear negligence, arising from an obvious disregard of duty and safety, to determine it as a question of law: 2 P. F. Smith 282; 11 Casey 71; 9 Id. 318. Numerous other authorities might be cited for this. Where the inference from the facts is necessarily that there is negligence, the court ought to determine the negligence as a matter of law. Of course the assertion of the principle in this way presupposes no answer to the facts, so as to rebut the inference to be drawn, and implies that this may be done in all cases, if there be facts to that effect.

A passenger, on entering a railroad car, is to be presumed to know the use of a seat, and the use of a window; that the former is to sit in, and the latter is to admit light and air. Each has its separate use. The seat he may occupy in any way most comfortable to himself. The window he has a right to enjoy — but not to occupy. Its use is for the benefit of...