Cohen v. Philadelphia Rapid Transit Company
| Decision Date | 09 May 1910 |
| Docket Number | 121 |
| Citation | 77 A. 500,228 Pa. 243 |
| Parties | Cohen v. Philadelphia Rapid Transit Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 21, 1910
Appeal, No. 121, Jan. T., 1909, by defendant, from judgment of C.P. No. 1, Phila. Co., Dec. T., 1906, No. 3,022, on verdict for plaintiffs in case of Sarah Cohen by her husband and next friend, Abraham Cohen, and Abraham Cohen v Philadelphia Rapid Transit Company. Reversed.
Trespass to recover damages for personal injuries. Before MAGILL, J.
The facts are stated in the opinion of the Supreme Court.
Verdict and judgment for Sarah Cohen for $3,000, and for Abraham Cohen for $1,500. Defendant appealed.
Error assigned was in refusing binding instructions for defendant.
The judgment is reversed, and would be here entered for the defendant, but for the ambiguity of the answer of the only witness for the plaintiffs who undertook to say who rang the bell. For that reason a venire facias de novo is awarded.
Thomas Leaming, with him Owen Roberts, for appellant. -- The defendant is not liable for the consequences of the act of an unauthorized stranger in pulling the bell and starting the car, thus injuring a fellow passenger: O'Neil v. R.R Co., 180 Mass. 576 (62 N.E. Repr. 983); McDonough v. R.R. Co., 95 App.Div. (N.Y.) 311; Moore v. Woonsocket St. Ry. Co., 27 R.I. 450 (63 A. Repr. 313); Krone v. Ry. Co., 71 S.W. Repr. 712; Columbus, etc., Ry. Co. v. Farrell, 31 Ind. 408.
William T. Connor, with him John R. K. Scott, for appellees. -- Whether the giving of the signal to proceed, which caused the car to start, was the act of a stranger to the defendant or not, it still remained for the jury to say whether that act, if that of a third party, had not been acquiesced in or ratified by the defendant: McCurdy v. Traction Co., 15 Pa.Super. 29; North Chicago St. R.R. Co. v. Cook, 145 Ill. 551 (33 N.E. Repr. 958); Nichols v. Railroad Company, 168 Mass. 528 (47 N.E. Repr. 427); Devoy v. Transit Co., 192 Mo. 197 (91 S.W. Repr. 140).
Before FELL, C.J., MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.
The plaintiffs in this case claim that Sarah Cohen was injured by the negligent starting of a trolley car, while she was in the act of boarding it. As the case was tried in the court below, it turned upon the determination of a single question of fact: Who gave the signal to start the car? If it was given by the conductor, as claimed by plaintiffs, the defendant company was liable for the resulting damages. If, as appeared from the evidence of the defendant, the signal was given by a person not in its employ, and without authority, then the defendant was not responsible for the result. It appears from the record that John McCausland testified that he was a passenger on the car in question and was standing on the rear platform. That when the car stopped at Sixth and Walnut streets, three or four men got on, and he pulled the bell and gave the signal for the car to start; and then he saw Mrs. Cohen and her husband come from the sidewalk, or from the back of the car, and that she attempted to get, on, just about the time the car was starting. He said the conductor was inside the car, where he had been collecting fares, but was then on his way to the rear platform. William Johnson testified that he also was a passenger standing on the rear platform, and that when the car stopped at Sixth street, several persons got on, and that Mrs. Cohen and her husband came up after them, and just about the time the bell was pulled, Mrs. Cohen got hold of the car. He said the bell was pulled by a gentleman on the back platform, while the conductor was inside the car. The conductor also testified that he did not ring the bell to start the car, but that he saw who rang it, and that it was Mr. McCausland.
Against this straightforward and positive testimony of these three witnesses, the record shows that Abraham Cohen, one of the plaintiffs, testified in the first place, that the conductor rang the bell, but upon cross-examination he said the conductor was inside the car, and in answer to the question "You don't know who rang the bell, do you?" he said, "Well, I could not say so." The meaning of his reply is not entirely clear. The most natural construction of the statement is, that he meant he could not say who rang the bell; and this would be a virtual withdrawal of his statement that the conductor...
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