Case v. Delaware, Lackawanna & Western Railroad Co.

• Decision Date: 15 May 1899
• Docket Number: 136
• Parties: Martha A. Case, Appellant, v. Delaware, Lackawanna & Western Railroad Company
• Court: Pennsylvania Supreme Court

43 A. 319

191 Pa. 450

Martha A. Case, Appellant, v. Delaware, Lackawanna & Western Railroad Company

No. 136

Supreme Court of Pennsylvania

May 15, 1899

Argued April 12, 1899

Appeal, No. 136, Jan. T., 1899, by plaintiff, from judgment of C.P. Columbia Co., Feb. T., 1895, No. 56, on verdict for defendant. Reversed.

Trespass for personal injuries alleged to have been negligently caused by defendant. Before HERRING, P.J.

The facts appear by the opinion of the Supreme Court.

The court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Error assigned among others was above instructions.

Judgment reversed and a venire facias de novo awarded.

H. M Hinckley and Charles G. Barkley, for appellants. -- Every person being carried with the express or implied consent of the carrier, upon public conveyance usually employed in the carriage of passengers, is presumed to be lawfully upon it as passenger: Hutchinson on Carriers (2d ed.), sec. 554; Bricker v. P. & R.R.R. Co., 132 Pa. 1; Lake Shore & Michigan Southern Ry. Co. v. Rosenzweig, 113 Pa. 539; Auerbach v. N.Y.C. & H.R.R.R. Co., 89 N.Y. 281.

A railroad company should have its stations plainly announced a sufficient time before reaching the depot to enable passengers to prepare for departure from the train, with their personal baggage, without the haste that involves them in peril: Ray on Neg. of Imposed Duties, sec. 47; 2 Harris on Damages by Corp. sec. 610; Louisville, N.O. & T. Ry. Co. v. Mask, 2 So. 360; Pass. Ry. Co. v. Stutler, 54 Pa. 378.

A carrier is liable for injuries sustained by a passenger in consequence of directing her to alight on a dark night, at a distance from the station: Ray on Neg. of Imposed Duties, sec. 49; Beach on Contributory Neg. (2d ed.) sec. 162; Neslie v. Pass. Ry. Co., 113 Pa. 303; Hartzig v. Lehigh Valley R.R. Co., 154 Pa. 364.

Passengers alighting from trains at the direction of the conductor are justified in assuming the place to be safe, and only under exceptional circumstances will their alighting be contributory negligence: Watkins v. R. & A. Air Line R.R. Co., 116 N.C. 961; Penna. R. Co. v. Lyons, 129 Pa. 120.

Mrs. Case had a right to rely on the care and judgment of the defendant's employees in charge of the train, who knew all about the place where they stopped to alight her: St. L., I.M. & S.R.R. Co. v. Cantrell, 37 Ark. 519; Beach on Contributory Neg. (2d ed.) sec. 148; Foss v. Boston & M.R.R. Co., 21 A. 222; A., T. & S.F.R.R. Co. v. Hughes, 40 P. 919; Evansville & T.H.R.R. Co. v. Athon, 33 N.E. 469.

The case was for the jury: Bucher v. N.Y.C. & H.R.R.R. Co., 98 N.Y. 128; Baltimore & Ohio R.R. Co. v. Meyers, 62 F. 367; Kohler v. R.R. Co., 135 Pa. 357; Forker v. Sandy Lake Borough, 130 Pa. 123; Gates v. Penna. R. Co., 154 Pa. 566; R.R. Co. v. Werner, 89 Pa. 64; Philpott v. R.R. Co., 175 Pa. 570; Davidson v. Ry. Co., 171 Pa. 526; Penna. R. Co. v. Coon, 111 Pa. 430; McCully v. Clarke & Thaw, 40 Pa. 406; Penna. R. Co. v. Peters, 116 Pa. 215; Clayton v. Traction Co., 3 Pa. Superior Ct. 107; Bruenninger v. Penna. R. Co., 43 W.N.C. 523.

Everett Warren, of Willard, Warren & Knapp, with him George E. Elwell and Ikeler & Ikeler, for appellee. -- The defendant was not negligent: R.R. Co. v. McClurg, 56 Pa. 294; Drake v. Penna. R. Co., 137 Pa. 352; Pittsburg, etc., Ry. Co. v. Nuzum, 50 Ind. 141; Logan v. R.R. Co., 77 Mo. 663; Johnson v. R.R. Co., 63 Md. 106; Applewhite v. Ry. Co., 52 Ind. 540; Penna. R. Co. v. Wentz, 37 Ohio 333; Michigan Cent. R.R. Co. v. Coleman, 28 Mich. 440; Dietrich v. R.R. Co., 71 Pa. 432; Ry. Co. v. Clark, 72 Pa. 231; Sevier v. Vicksburg, etc., R.R. Co., 61 Miss. 8; Kellett v. Chicago, etc., R.R. Co., 22 Mo.App. 356.

The alleged negligence was not the proximate cause of the injury: Benson v. R.R. Co., 98 Cal. 45; Chicago, Rock Island, etc., R.R. Co. v. Dingman, 1 Ill.App. 162; Ry. Co. v. Head, 4 Tex. Ct. of App. Civ. Cases, sec. 209; Hoag v. R.R. Co., 85 Pa. 293; Fairbanks v. Kerr & Smith, 70 Pa. 86; Bunting v. Hogsett, 139 Pa. 363; Ins. Co. v. Tweed, 7 Wallace, 44.

The plaintiff, Martha A. Case, was guilty of carelessness, and is alone responsible for whatever injuries she sustained: Stager v. Ry. Co., 119 Pa. 74; R.R. Co. v. Enches, 127 Pa. 316; Deery v. R.R. Co., 163 Pa. 403; R.R. Co. v. Zebe, 33 Pa. 318; R.R. Co. v. Langdon, 92 Pa. 21; Ham v. Canal Co., 155 Pa. 548; Mead v. Conroe, 113 Pa. 220; Bank v. Tinker, 158 Pa. 17; Yingst v. Ry. Co., 167 Pa. 438; Barnes v. Sowden, 119 Pa. 53; Sturgis v. Detroit, Grand Haven, etc., Ry. Co., 72 Mich. 619; R.R. Co. v. Aspell, 23 Pa. 147; Graham v. R.R. Co., 139 Pa. 149; Siner v. Ry. Co., L.R. 4 Exch. Cases, 117; Cincinnati, Wabash, etc., R.R. Co. v. Peters, 80 Ind. 168; Mackey v. N.Y. Cent. R.R. Co., 27 Barb. 528; Dewald v. Kansas City, etc., R.R. Co., 44 Kan. 586; Penna. R. Co. v. Spicker, 105 Pa. 142; Vankirk v. Penna. R. Co., 76 Pa. 66; Auerbach v. N.Y.C. & H.R.R.R. Co., 89 N.Y. 281; Pass. Ry. Co. v. Stutler, 54 Pa. 375; Neslie v. Pass. Ry. Co., 113 Pa. 300; Johnson v. West Chester, etc., R.R. Co., 70 Pa. 357; Sweeny v. Old Colony, etc., R.R. Co., 10 Allen, 368; Hickey v. Boston, etc., R.R. Co., 14 Allen, 429; Hulbert v. N.Y. Cent. R.R. Co., 40 N.Y. 145; St. Louis, I.M. & S.R.R. Co. v. Cantrell, 37 Ark. 519.

Before STERRETT, C.J., GREEN, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

This action, brought by the plaintiff in her own right to recover damages for personal injuries negligently caused by the defendant company, was consolidated with a similar action brought by her husband, and both were tried together under the provisions of the act of May 8, 1895. At the close of the trial, the case was withdrawn from the jury and a verdict directed for defendant in the following brief charge:

"We will affirm the first point of the defendant which makes it unnecessary to dispose of the rest. All the points of the plaintiff, involving the submission of the case to the jury, are, of course, denied or disaffirmed for that reason. Take the verdict of the jury in favor of the defendant."

The point thus referred to by the court below is: "Upon the whole case, the verdict must be for the defendant."

Passing, for the present at least, the specifications complaining of the court's action in refusing to continue the cause, and afterwards refusing to withdraw a juror, etc., the instruction above quoted was wholly unwarranted, unless there was no evidence tending to prove that defendant company was guilty of negligence which was the proximate cause of plaintiff's injury, or unless it was admitted or proved by undisputed evidence that plaintiff herself was guilty of negligence which contributed to her injury. A careful consideration of the record discloses nothing to justify the court below in concluding, as matter of law, either that there was no evidence to go to the jury on the question of defendant's negligence, or that, as a matter of undisputed fact, the plaintiff herself was guilty of contributory negligence. On the contrary, there was an abundance of evidence tending to prove that defendant company's negligence was the proximate cause of the injury complained of, evidence which, if believed by the jury, would have warranted them in rendering a verdict in plaintiff's favor; but there was also some rebutting testimony on the same subject; so that the question of defendant's negligence was clearly and necessarily for the exclusive consideration of the jury. As to the question of contributory negligence, the testimony was also conflicting, and therefore for the jury and not for the court. As presented by the evidence sent up with the record, we are satisfied that the case should have been submitted to the jury with proper instructions as to the law applicable to the facts which it tended to prove.

It is not our purpose, nor is it necessary, to review the evidence at length, but it will not be amiss to refer to some of the facts upon which plaintiff relied. On her behalf, it was shown in substance that on August 27, 1894, she applied to the ticket agent at Hillsdale on the line of the Lake Shore and Michigan Southern Railroad for a ticket, via that road and the defendant company's road, to Berwick, Pennsylvania. Being informed by him that he could not give her a ticket to Berwick but could sell her one to Bloomsburg, Pa., about twelve miles beyond, she purchased the latter, and had her trunk checked to Bloomsburg, to correspond with her ticket. Having arrived at Buffalo, N.Y., same night, after waiting some time for next connecting train over defendant company's road, she resumed her journey and arrived at Scranton, Pa., about half past three o'clock P.M. on August 28. She then took next train (a local train not running as far as Berwick) by which she was carried to Kingston.

Remaining at Kingston depot until 6:55 o'clock P.M. she took a seat in the rear car of the next train for Berwick, her destination. On the train from Scranton to Kingston her ticket was accepted by the conductor who punched and returned it to her. After leaving Kingston, the conductor of that train took her ticket, looked at it, saw it had been previously punched on his division of the road, punched it and handed it back to her. At that time, she informed him that, while her ticket called for Bloomsburg she wished to get off at Berwick and requested him to have her trunk set off there. Shortly thereafter, he returned, took up her ticket and asked her for her trunk check.

To this latter request she at first objected on the ground that she would then have nothing to show for the trunk, but upon his assuring her that the ticket and the check must both go to the same destination she gave him the check, with the understanding that...