Bickley v. Philadelphia & R. Ry. Co.

• Decision Date: 16 April 1917
• Docket Number: 160
• Parties: Bickley, Appellant, v. Philadelphia & Reading Railway Company
• Court: Pennsylvania Supreme Court

101 A. 654

257 Pa. 369

Bickley, Appellant, v. Philadelphia & Reading Railway Company

No. 160

Supreme Court of Pennsylvania

April 16, 1917

Argued January 11, 1917

Appeal, No. 160, Jan. T., 1916, by plaintiff, from order of C.P. No. 4, Philadelphia Co., March T., 1914, No. 3349 refusing to take off nonsuit, in case of Mary M. Bickley v Philadelphia and Reading Railway Company. Reversed.

Trespass to recover damages for personal injuries. Before CARR, J.

The opinion of the Supreme Court states the facts.

The trial judge entered a compulsory nonsuit, which the court in banc subsequently refused to take off. Plaintiff appealed.

Error assigned was in refusing to take off the nonsuit.

The judgment is reversed with a procedendo.

Eugene Raymond, with him John Martin Doyle, for appellant. -- The plaintiff was a passenger; the defendant owed her the highest degree of care and if an accident resulted to her from its instrumentalities, the presumption of defendant's negligence arose: Powell v. Philadelphia & Reading Ry. Co., 220 Pa. 638; Rhoads v. Cornwall & Lebanon R.R. Co., 48 Pa.Super. 310.

The blow received by the plaintiff could not have had any other presumptive origin than in the operations of the defendant within its train shed.

The workman on the platform of the car took upon himself the blame for plaintiff's accident; and he was presumptively an employee of the defendant: Madara et ux. v. Shamokin & Mt. Carmel Electric Ry. Co., 192 Pa. 542.

The circumstances of plaintiff's injury bring it within the rule that when injury results from the means and appliances of transportation, the carrier is presumed to be negligent: Fox v. Philadelphia, 208 Pa. 127; Fern v. Penna. R.R. Co., 250 Pa. 487; Booth v. Dorsey, 208 Pa. 276; Ahern v. Melvin, 21 Pa.Super. 462.

Wm. Clarke Mason, for appellee. -- In a case of this character the burden of proving negligence is upon the plaintiff: Bradley v. Lake Shore & Mich. Southern Ry. Co., 238 Pa. 315; Wall v. Lit, 195 Pa. 375; Green v. Balto. & Ohio R.R. Co., 214 Pa. 240; Ginn v. Penna. R.R. Co., 220 Pa. 552.

Before MESTREZAT, POTTER, STEWART, MOSCHZISKER and FRAZER, JJ.

OPINION

MR. JUSTICE MESTREZAT:

This is an action of trespass to recover damages for injuries which the plaintiff alleges were caused by the negligence of the defendant carrier when she was entering one of its coaches at the Reading Terminal station in the City of Philadelphia. The learned trial judge granted a nonsuit which the court refused to remove, and the plaintiff has appealed.

The plaintiff was the only witness examined, and from her testimony it appears that on the morning of February 5, 1914, she went to the Reading Terminal to take the 10:15 train for Quakertown. She had a mileage book, and on her arrival at the station went directly from the first to the second or train-shed story of the building. The gates in the iron grating separating the train shed from the station proper had been opened to admit passengers to the train, and the plaintiff entered the gate on the east side and passed along the station platform until she reached the rear end of the third car from the engine, other cars of the train standing in the rear of it. As she approached the car, she saw the lower part of the legs of a man standing on the car platform. On ascending the steps, she looked up and saw that the man was dressed in overalls, with a cap on, and was reaching up and doing work on the ceiling of the car. When she reached the first step below the platform, she was "struck with a heavy blow" on the right side of her head, and the workman said, "oh, excuse me, I didn't see you coming up the steps," and took hold of her arm and put her in the first seat of the car. She was stunned by the blow and her head was cut, "everything became black in front of me," her hat pins were bent and broken, her hair pins and a great deal of her hair were torn out. She reported the accident to the conductor when he came for her fare near Wayne Junction. She suffered intensely from the blow which resulted in her permanent injury. This, in brief, is substantially how the accident occurred and its effect on the plaintiff.

While admitting that, at the time she was injured, the plaintiff was lawfully on the premises of the defendant company by its invitation and as its passenger, and entitled to the highest degree of care and foresight which the law requires of a carrier for protection of its passengers, the learned court below held that the burden of proving negligence was upon the plaintiff and that negligence would not be presumed from the happening of the accident; and further that the plaintiff was guilty of contributory negligence in proceeding up the steps of the car in spite of the fact that she saw someone above her apparently engaged in work in such a position that something might happen to her if she proceeded further.

The plaintiff contends that she was a passenger; that if an accident resulted to her from the instrumentalities of the defendant a presumption of its negligence arose; that the blow received could not have had any other presumptive origin than in the operations of the defendant within its train shed; that the workman, by his remark, assumed the blame for the accident and he was presumptively an employee of the defendant; that the circumstances of the injury bring it within the rule that when injury results from the means and appliances of transportation, the carrier is presumed to be negligent; and that the plaintiff was not guilty of contributory negligence.

The defendant's counsel claims that there are no facts upon the record, as disclosed by the evidence, to show what it was that hit the plaintiff, where it came from, who had control over it, or that the man on the car platform was in the employ of the defendant, and that the plaintiff was guilty of contributory negligence.

It is conceded by the court below as well as by counsel for the appellee, as will be observed, that the plaintiff stood in the relation of passenger to the carrier when she was injured. At the time of the accident the plaintiff had a mileage book, and the defendant had invited her to enter its train by announcing it and opening the gates for her and other passengers to pass into the train shed. We do not agree with the defendant's contention that the evidence was not sufficient to warrant the jury in finding that the man at work on the car platform was engaged in the company's service. The testimony of the plaintiff shows that persons could not enter the train shed from the station until the gates in the iron grating were opened for that purpose. It is, therefore, a reasonable inference that anyone within the train shed is there by permission of or on business for the defendant. The man on the car platform was wearing overalls and a cap and was engaged in doing...