Dennis v. Pittsburg & Castle Shannon R.R.

• Decision Date: 07 January 1895
• Docket Number: 93
• Citation: 165 Pa. 624,31 A. 52
• Parties: Peter J. Dennis v. Pittsburg & Castle Shannon R.R., Appellant
• Court: Pennsylvania Supreme Court

31 A. 52

165 Pa. 624

Peter J. Dennis v. Pittsburg & Castle Shannon R.R., Appellant

No. 93

Supreme Court of Pennsylvania

January 7, 1895

Argued November 6, 1894

Appeal, No. 93, Oct. T., 1894, by defendant from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1893, No. 609, on verdict for plaintiff. Affirmed.

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

The facts appear by the opinion of the Supreme Court.

Defendant's request for binding instructions was refused:

Verdict and judgment for plaintiff for $800.

Error assigned was above instruction, quoting it.

The judgment is affirmed and the appeal is dismissed.

S. B Schoyer, S. Schoyer, Jr., and J. M. Cook with him, for appellant. -- The burden of proof was on plaintiff in this case, not only to affirmatively prove appellant's negligence, but to disprove his own contributory negligence Herstine v. R.R., 151 Pa. 244.

Plaintiff having been injured while riding in a place of known danger, has the burden not only of proving that he was free from negligence while there, but must prove that he was there from necessity and not from choice: R.R. v. Hoosey, 99 Pa. 492; Langdon v. R.R., 92 Pa. 21; Wills v. R.R., 129 Mass. 351; Torrey v. R.R., 147 Mass. 412; Hickey v. R.R., 14 Allen, 429; Graville v. R.R., 105 N.Y. 525.

It was negligent in plaintiff, as a matter of law, to place himself in the above position, and remain there without holding to the rails: R.R. v. Hoosey, 99 Pa. 492; Malcom v. R.R., 106 N.C. 63; R.R. v. Bisch, 120 Ind. 549; Wills v. R.R., 129 Mass. 351; Meesel v. R.R., 8 Allen, 234; Ward v. R.R., 11 Abbott's Pr. N.S. 411; Walling v. Ry., 97 Pa. 55.

Plaintiff actually saw and knew before he got upon the platform that, owing to the crowded condition of the car, he would be obliged to ride upon the platform.

The reasoning of those cases which decide the failure to provide a seat does not justify a passenger in riding on the platform, supports the above contention and applies equally to the case of a passenger who boards a crowded train, knowing that he will not be able to get inside. He should appeal to the law for redress: Siner v. R.R., 8 L.J. Ex. 98; Lucas v. R.R., 6 Gray, 64; Saunders on Neg., 25 and 26; Granville v. R.R., 105 N.Y. 525.

One who leaves a place of safety without excuse and takes a position on the platform is guilty of contributory negligence: Hoosey v. R.R., 99 Pa. 492; Hickey v. R.R., 14 Allen, 429; Torrey v. R.R., 147 Mass. 412; Raymond on Imposed Duties of Carriers, § 227.

James S. Young, S. U. Trent with him, for appellee. -- Plaintiff was not in a position necessarily of danger, being on the rear platform of the car, which was practically a street car operated by a cable. If the place was one of danger he was there by the invitation of the conductor, and there by necessity, because defendant had invited him to that place under the belief that he could get into the car, and had then made it impossible for him to descend from the platform by permitting others to get onto the platform with him, hemming him in on either side. It was a case for the jury.

Before STERRETT, C.J., WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

The defendant operates a narrow gauge railroad running about seven miles out of Pittsburg. On the 18th June, 1893, defendant, to accommodate a German society in an excursion to West Liberty, on the line of its road, ran excursion trains to that point, from Carson street in Pittsburg. The route was up an incline railway from Carson street to summit of a hill, then down an incline operated by a cable, 1300 feet, to foot of hill on the other side, where the cars were attached to a locomotive which took them to West Liberty. The plaintiff, with his son and a friend, took passage at Carson street, ascended the incline, then got off to enter the cable cars to descend to the level. Here there was a large crowd of people, all, as usual on such occasions, eager to enter the cars, there were two trains scheduled to start ten minutes apart, of four or five cars each, standing ready; plaintiff and his son and friend got upon the rear platform of the first train; the car was very full of passengers; the train started and had moved but two or three hundred feet when plaintiff was pushed and fell to the ground, dislocated his elbow and sustained other injuries which have seriously disabled him. He brought suit against defendant for damages, alleging the fall from the car was in consequence of its negligence in so crowding the body of the car with passengers that he could not get inside, and in so crowding the platform after he was upon it that he could not get off before starting or maintain his place upon it afterwards. There was a verdict and judgment for plaintiff, from which defendant appeals, assigning for error the refusal of the court on all the evidence to direct a verdict for defendant.

The court instructed the jury that if plaintiff got on the platform when he saw the car was so crowded he could not get...