Delaney v. Buffalo, Rochester & Pittsburgh Railway Co

• Decision Date: 05 January 1920
• Docket Number: 57
• Citation: 266 Pa. 122,109 A. 605
• Parties: Delaney, Appellant, v. Buffalo, Rochester & Pittsburgh Railway Co
• Court: Pennsylvania Supreme Court

109 A. 605

266 Pa. 122

Delaney, Appellant, v. Buffalo, Rochester & Pittsburgh Railway Co

No. 57

Supreme Court of Pennsylvania

January 5, 1920

Argued October 15, 1919

Appeal, No. 57, Oct. T., 1919, by plaintiff, from judgment of C.P. Allegheny Co., July T., 1917, No. 1881, for defendant n.o.v. in case of Eva Delaney v. Buffalo, Rochester &amp Pittsburgh Railway Company. Affirmed.

Trespass for personal injuries. Before SHAFER, P.J.

At the trial the jury returned a verdict for plaintiff for $2,000. Subsequently the court entered judgment for defendant n.o.v Plaintiff appealed.

Error assigned was in entering judgment for defendant n.o.v.

The assignments of error are overruled and the judgment is affirmed.

Meredith R. Marshall, with him Rody P. Marshall, for appellant. -- Where the motion of a train or conveyance is unusual, the case is for the jury: Sulger v. Phila. & Reading Ry., 245 Pa. 128; De Marchi v. Central R.R. Co., 264 Pa. 321; Cline v. Pittsburgh Ry. Co., 226 Pa. 586; Tilton v. Phila. Rapid Transit Co., 231 Pa. 63; Kleine v. Pittsburgh Rys. Co., 252 Pa. 214; Sanson v. Phila. Rapid Transit Co., 239 Pa. 505; Murray v. Phila. & Reading Ry. Co., 249 Pa. 126; Dixey v. Phila. Traction Co., 180 Pa. 401; Gould v. Atlantic City R.R. Co., 68 Pa.Super. 431.

J. M. Wright, of Wright, Chalfant & McCandless, for appellee. -- To furnish ground for an action against a railroad company for injuries to a passenger from the swaying of a car, it must appear that the swaying was more than is ordinarily to be expected, and that it was due to a defect in the car or track, a negligent or dangerous rate of speed, or some other cause for which the company can be held responsible: Penna. R.R. Co. v. MacKinney, 124 Pa. 462; Spear v. R.R. Co., 119 Pa. 61; Herstine v. Lehigh Valley R.R. Co., 151 Pa. 244; Cline v. Pittsburgh Rys. Co., 226 Pa. 586; Janock v. B. & O.R.R. Co., 252 Pa. 199; Gould v. Atlantic R.R. Co., 68 Pa.Super. 432; Panek v. Scranton Ry. Co., 258 Pa. 589; Murray v. Phila. & Reading Ry. Co., 249 Pa. 126; Uffelman v. Phila. Rapid Transit Co., 253 Pa. 394; Kleine v. Pittsburgh Rys. Co., 252 Pa. 214; Fornwalt v. Phila. Rapid Transit Co., 65 Pa.Super. 559; DeBouvier v. Penna. R.R. Co., 264 Pa. 443; Norfolk & Western Ry. Co. v. Birchett, 252 F. 512; Norfolk & Western R.R. Co. v. Rhodes, 109 Va. 176; Nelson v. Lehigh Valley R.R. Co., 25 App.Div. (N.Y.) 535; Ozanne v. Illinois Central R.R. Co., 151 F. 900; Partelow v. Newton & Boston St. Ry. Co., 196 Mass. 24; Foley v. Boston & Maine R.R. Co., 193 Mass. 332; C. & O. Ry. Co. v. Needham, 244 F. 146; Olund v. Worcester Consolidated St. Ry. Co., 206 Mass. 544; Wilder v. Metropolitan St. Ry. Co., 41 N.Y.S. 931.

Before BROWN, C.J., MOSCHZISKER, FRAZER, WALLING, SIMPSON and KEPHART, JJ.

OPINION

MR. JUSTICE WALLING:

This appeal is by plaintiff from an order entering judgment for defendant n.o.v., in an action for personal injuries to a passenger. On May 5, 1917, plaintiff, Eva Delaney, accompanied by a girl friend, took passage at Pittsburgh to go to Du Bois on defendant's train known as the Buffalo flyer. As it approached Vallier's curve, near Punxsutawney, plaintiff was just resuming her seat in the observation car, when a sudden lurch caused her to fall upon her knees in the aisle and to strike her head and shoulders against the revolving chairs on the opposite side of the car, causing personal injury.

The trial judge properly entered judgment for defendant on the ground that there was no evidence of defendant's negligence, except the happening of the accident, which of itself did not justify a recovery. So far as this question has come before the American courts it has been held with practical unanimity that a railroad company is not liable for injury to a passenger on a fast train by the lurching of the train due to sharp curves in the track caused by the configuration of country, if the track is well constructed and the train properly operated under the circumstances of the case; as the risk of such injury is an incident of travel assumed by the passenger: Chesapeake & Ohio Ry. Co. v. Needham, 244 F. 146. This case is also reported in L.R.A., 1918 A, p. 1169, where a valuable note is found (p. 1171) referring to numerous cases. In the present case no defect was shown in the appliances of transportation, or manner of operation; on the contrary, it affirmatively appeared that the track, train and all appliances were in first class condition and the operation free from fault, and nothing happened to the track or train; so the burden of proving negligence rested upon the plaintiff, and it was not met. An injury to a passenger raises no presumption against the carrier unless the accident is connected in some way with the means of transportation: Herstine v. Lehigh V. R.R. Co., 151 Pa. 244; Cline v. Pittsburgh Rys. Co., 226 Pa. 586; Thomas v. Phila. & Reading R.R. Co., 148 Pa. 180. And the situation is not changed by the fact that plaintiff's evidence describes the lurch or jolt as "terrific." That a passenger fell from her chair from the mere movement of the car of a fast train does not make out a prima facie case of negligence; and her mere characterization of the movement as a terrific or violent lurch adds nothing from which negligence can be legitimately inferred: Norfolk & W. Ry. Co. v. Birchett, 252 F. 512. See also Ozanne v. Illinois Cent. R. Co., 151 F. 900; and Uffelman v. Phila. R.T. Co., 253 Pa. 394. There is no presumption of negligence arising from the use of the words "sudden jerk": Fornwalt v. Phila. R.T. Co., 65 Pa.Super. 559. The jolt here could not have been so much out of the ordinary as nothing happened to the dishes in the buffet end of the car and no other person was disturbed. A presumption of want of care on part of the railroad company is not justified by such an accident: Wilder v. Metropolitan St. Ry. Co., 41 N.Y.S. 931. For it is well settled that, "The rule of Laing v. Colder, 8 Pa. 481, and other like cases, that a presumption of negligence on the part of the carrier arises when a passenger is injured in the course of transportation, cannot be invoked without evidence tending to connect the carrier, or its employees, or some of the appliances of transportation, with the happening of the injury": Penna. R. Co. v. MacKinney, 124 Pa. 462. It is a matter of common knowledge that cars will lurch in rounding curves and to recover for an injury to a passenger resulting therefrom it must appear that such lurch was caused by some negligent act or omission on part of defendant. An examination of our cases shows that where a recovery has been sustained for such injury there was evidence that the jolt or lurch was the result of negligence. For example, in the very recent case of De Marchi v. Central R.R. Co., 264 Pa. 321, the evidence tended to show that the train was rounding a curve at a dangerous rate of speed considering the faulty condition of the track, and also that the passageway from which the deceased fell was unguarded. Sulger v. Phila. & Reading Ry. Co., 245 Pa. 128, is also a case of an unguarded platform where passengers were impliedly invited to go.

It is the duty of a railroad or street car company to exercise due care in the starting and stopping of passenger cars, and where they are started with such a sudden jerk or stopped so abruptly as to injure passengers it is evidence of a negligent operation and calls upon the...