Brehony v. Pottsville Union Traction Co.
| Decision Date | 06 May 1907 |
| Docket Number | 344 |
| Citation | 218 Pa. 123,66 A. 1006 |
| Parties | Brehony v. Pottsville Union Traction Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued February 18, 1907
Appeal, No. 344, Jan. T., 1906, by defendant, from judgment of C.P. Schuylkill Co., Jan. T., 1904, No. 74, on verdict for plaintiffs in case of William Brehony and Delia Brehony, his wife, v. Pottsville Union Traction Company. Reversed.
Trespass to recover damages for personal injuries. Before BECHTEL P.J.
The opinion of the Supreme Court states the case.
Verdict for Delia Brehony for $1,800 and for William Brehony for $400. Defendant appealed.
Error assigned among others was in submitting the case to the jury.
Judgment reversed.
R. H. Koch, for appellant. -- An intoxicated person has as much right in a passenger car as a sober one, so long as he properly conducts himself: Sullivan v. Jefferson Arc. Railway Co., 133 Mo. 1 (34 S.W. Repr. 556); Spohn v. Missouri Pacific Ry. Co., 87 Mo. 74; Thompson v. Manhattan Ry. Co., 27 N.Y.S. 608; Meier v. Penna. R.R. Co., 64 Pa. 225.
George M. Roads, with him M. A. Kilker, for appellees. -- The defendant owed the plaintiff the duty of protection: Pittsburg & Connellsville R.R. Co. v. Pillow, 76 Pa. 510; Rommel v. Schambacher, 120 Pa. 579; Duggan v. B. & O.R.R. Co., 159 Pa. 248; Artherholt v. Erie Electric Motor Co., 27 Pa.Super. 141.
Before MITCHELL, C.J., FELL, BROWN, POTTER and STEWART, JJ.
A passenger, more or less under the influence of drink, who had refused to pay his fare when demanded, and thereupon became disorderly in resisting the conductor who was attempting to eject him, gave a violent kick directed at the conductor but which struck the plaintiff, Mrs. Brehony, a married woman occupying a seat opposite in the car, and seriously injured her. The action was brought by the injured woman and her husband, William Brehony, against the traction company to recover damages for the injuries sustained, on the ground that the company unlawfully and negligently permitted the person who inflicted the injury to get on the car and ride therein while visibly intoxicated. This is the only negligence charged in the statement filed. We must assume therefore, that in ejecting the unruly passenger, the conductor was strictly in the line of his duty, and that he used no greater violence and created no greater disturbance than the circumstances made necessary. We have the single question presented -- whether it was negligence in the conductor to admit to the car the passenger who afterwards inflicted the injury. The averment in the statement of cause of action is, that this person was visibly and plainly intoxicated. The evidence supported the averment. Several of the witnesses say he was drunk; others say he was visibly intoxicated, and others that they thought he was somewhat intoxicated, but not to a serious degree. All spoke from what they saw of his behavior after he was on the car, and all but one or two derived their opinion from his behavior while in altercation with the conductor. None spoke of his conduct while approaching the car or entering it, and all say that while seated, and up until the altercation arose, he was conducting himself properly, giving no offense to any. It is impossible from the evidence to determine the decree of the man's intoxication. We have simply the case of a man intoxicated by liquor. As that expression is commonly used, it indicates nothing as to the degree; it may mean much, or may mean very little. One thing is clear, the man was not so intoxicated as to require help. He entered the car unaided, and in a way that attracted no attention and excited no comment. The same is true of his conduct in the car until the controversy began. One of plaintiffs' witnesses says that she saw him running to the crossing in order to take the car. The case was submitted to the jury in a charge...
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