Blair v. Philadelphia Rapid Transit Co.

• Decision Date: 15 July 1908
• Docket Number: 1-1907
• Parties: Blair, Appellant, v. Philadelphia Rapid Transit Company
• Court: Pennsylvania Superior Court

36 Pa.Super. 319

Blair, Appellant, v. Philadelphia Rapid Transit Company

No. 1-1907

Superior Court of Pennsylvania

July 15, 1908

Argued December 10, 1907

Appeal by plaintiff, from judgment of C.P. No. 2, Phila. Co.-1903 No. 3,607, for defendant non obstante veredicto in case of Charles J. Blair v. Philadelphia Rapid Transit Company.

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

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff for $ 1,000. The court subsequently entered judgment for defendant non obstante veredicto.

Error assigned was in entering judgment for defendant non obstante veredicto.

S. G Birnie, with him George Henderson, for appellant, cited Mallory v. Griffey, 85 Pa. 275; Bradwell v. Railway Co., 139 Pa. 404; Kingston Twp. v. Gibbons, 18 W.N.C. 334; Allen v. Warwick Twp., 9 Pa.Super. 507; Phillips v. Traction Co., 8 Pa.Super. 210; Walters v. Traction Co., 161 Pa. 36; Powelson v. United Traction Co., 204 Pa. 474; Boulfrois v. Traction Co., 210 Pa. 263.

Thomas Leaming, for appellee, cited: Bendon v. Union Traction Co., 26 Pa.Super. 539; Jennings v. Union Traction Co., 206 Pa. 31; Pitcher v. Street Ry. Co., 154 Pa. 560.

Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.

OPINION

HEAD, J.

Just prior to the accident which injured the plaintiff he walked eastward along the south side of Race street, in the city of Philadelphia, to the southwest corner of Race and Ninth streets, intending to board a north bound car on Ninth street.

He was then sixty-nine years of age, but claims he was strong and active. He had been a sailor in his early days and, it is apparent from his testimony, relied with confidence on his ability to board even a moving car with safety. With a frankness that is somewhat unusual he says: " I never wanted a car to stop for me altogether. I thought I could get on a car better when it was running -- it just gently swings you on."

He had traveled frequently on the Ninth street cars and admits he knew their regular stopping place, for the receipt and discharge of passengers was on the north side of Race street. When he reached the corner and looked south on Ninth street he saw a car the movement of which, towards its regular stopping place, had been impeded or checked by a dray or other vehicle. The car moved up slowly until its rear platform reached the crossing line of the south side of Race street when the plaintiff undertook to board it. Whether or not at that moment the car was moving or had come to a dead stop he will not say -- and his evidence is all there is on that subject -- the defendant offering no testimony whatever. The plaintiff succeeded in mounting the lower step of the car, was standing with one foot only on it and with the other raised to reach the platform, when the car either started or accelerated its speed and this movement was attended, as he says, with several violent jerks. He carried an umbrella in his left hand, and in mounting the step had, with that hand thus incumbered, taken such grasp as he could of the stanchion on that side. Of his right hand which was free and of the supporting rail on that side he made no use whatever. By the movement of the car in the manner described whilst the plaintiff was in the insecure position indicated, he lost his equilibrium and fell or was thrown to the street at practically the same point whence he started to board the car. There is no evidence whatever that the movement of the car caused even any inconvenience, much less any injury to any passenger seated or standing in the car; nor that plaintiff signaled the car to stop or gave notice in any way of his intention to board it; nor that either conductor or motorman had any knowledge that he was attempting to enter the car when it moved. We have already seen it had not yet reached its regular stopping place where those in charge would be under obligation to look out for passengers either entering or leaving the car.

The entire case of the plaintiff rests on the proposition that he was a passenger on the car of the defendant and that it was guilty of a breach of the obligation a carrier assumes to discharge towards a person who is accepted as a passenger. When and how, under the facts of this case, was the relation of carrier and...