Crissey v. Hestonville, &C., Passenger Railway Co.

• Decision Date: 26 January 1874
• Citation: 75 Pa. 83
• Parties: Crissey <I>versus</I> Hestonville, Mantua and Fairmount Passenger Railway Company.
• Court: Pennsylvania Supreme Court

75 Pa. 83

Crissey versus Hestonville, Mantua and Fairmount Passenger Railway Company.

Supreme Court of Pennsylvania.

January 8, 1874.

January 26, 1874.

January 8th 1874.

Before AGNEW, C. J., SHARSWOOD and MERCUR, JJ.

Error to the District Court of Philadelphia: No. 184, to January Term 1872.

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W. H. Sutton, for plaintiff in error.—The slightest omission of care by a carrier of passengers renders him liable for injury which may result: Tennery v. Pippinger, 1 Phila. R. 543; Laing v. Colder, 8 Barr 492; Meier v. Penna. R. R., 14 P. F. Smith 230. An injury to a passenger presumes want of care: Railroad v. Norton, 12 Harris 466. Where negligence is concurrent, the same rule will not apply to children as to adults; the question as to the relative degree of care is for the jury: Reading R. R. v. Spearen, 11 Wright 300; Smith v. O'Connor, 12 Id. 222; Rauch v. Lloyd, 7 Casey 370; Glassey v. Railway, 7 P. F. Smith 174; Penna. R. R. v. Bentley, 16 Id. 30; Railroad v. McClurg, 6 Id. 294; Shearman & Redfield on Negligence, 13-15, 310, 339.

H. Hazlehurst (with whom was I. Hazlehurst), for defendants in error.—Where the facts are not disputed the question of negligence is a legal inference. Ordinary care, reasonable time and probable cause, the facts being established or proved, are questions of law to be decided by the court: Biles v. Holmes, 11 Ired. Law Rep. 16; Heathcock v. Pennington, Id. 640; Herring v. Will. R. R. Co., 10 Id. 402; Dascomb v. R. R. Co., 37 Barb. 221; Purvis v. Coleman, 1 Bosw. 321; Weidler v. Farmers' Bank, 11 S. & R. 134; Catawissa R. R. v. Armstrong, 2 P. F. Smith 286. A plaintiff, claiming damages for negligence, must make out a case resulting exclusively from defendant's negligence: Waters v. Wing, 9 P. F. Smith 212; Railroad Co. v. Norton, 12 Harris 465; Heil v. Glanding, 6 Wright 493.

It is not necessarily negligent for a passenger to ride upon the platform of a car: Meesel v. Lynn R. R. Co., 8 Allen 234; Willis v. Long Isl. R. R. Co., 32 Barb. 397; Clark v. R. R. Co., Id. 657; Colegrove v. R. R. Co., 6 Duer 382; Shearman & Redfield Neg. 284 and 326.

Stepping on or off a car of any kind while in motion is almost always considered to be negligence, and it must be a very peculiar case in which a passenger can recover for an injury suffered under such circumstances: Shearman & Redfield on Neg. 281, 319; Lucas v. Taunton, 6 Gray 64; Nichols v. Sixth Avenue Railway Co., 38 N. Y. 131; Willis v. Long Isl. R. R. Co., 32 Barb. 404. As to the plaintiff's infancy: Hughes v. Macfie, 2 H. & C. 744; Mangan v. Atterton, Law Rep. 1 Ex. 239; Shear. & Red. Neg. 53, § 49.

The opinion of the court was delivered, January 26th 1874, by MERCUR, J.

The first assignment of error is not according to the rules. All the other assignments are to the charge of the court, and will be considered together. As a general rule a question of negligence must be submitted to the jury. It should be where there is any substantial doubt as to the facts, or to the inferences to be drawn from them: Pennsylvania R. R. Co. v. Barnett, 9 P. F. Smith 259; Johnson v. Bruner, 11 Id. 58; McKee v. Bidwell, 24 Id. 218.

There is no absolute rule as to what constitutes negligence. It is dependent upon the particular circumstances of the case. Where the measure of duty is not unvarying; where a higher degree of care is demanded under some circumstances than under others; where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proven: McCully v. Clarke et al., 4 Wright 406; Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith 30. Where the measure of duty is ordinary and reasonable care, it is always a question for the jury: West Chester & Philadelphia R. R. Co. v. McElwee, 17 P. F. Smith 311. Where negligence is concurrent, a child will not be held to the exercise of the same degree of care and discretion as an adult: Rauch v. Lloyd et al., 7 Casey 358; Pennsylvania R. R. Co. v. Kelly, Id. 372; Smith v. O'Connor, 12 Wright 218; Oakland Railway Co v. Fielding, Id. 320; Glassey v. H., M. & F. Passenger R. R. Co., 7 P. F. Smith 172; Kay v. Pennsylvania R. R. Co., 15 Id. 269.

Now let us apply the law to the facts in this case. The plaintiff was a child of the age of thirteen years. He and his companion, a boy of the same age, signalled the driver as the defendants' car crossed Thirteenth street. The car was slackened to receive them; they stood there by the side of the driver all the way out to Forty-first street and Lancaster Avenue. No objection was made by either the driver or conductor to their riding there; neither of them requested the plaintiff to step inside of the car; the conductor came to him and collected his fare; at Forty-first street and Lancaster Avenue, the plaintiff said to his companion in a voice sufficiently loud for the driver to hear, "I am going to get off here." The speed of the car was thereupon slackened; the plaintiff took hold of...