Dixey v. Philadelphia Traction Co.

• Decision Date: 22 March 1897
• Docket Number: 579
• Parties: Beth Dixey, Appellant, v. The Philadelphia Traction Company
• Court: Pennsylvania Supreme Court

36 A. 924

180 Pa. 401

Beth Dixey, Appellant, v. The Philadelphia Traction Company

No. 579

Supreme Court of Pennsylvania

March 22, 1897

Argued January 18, 1897

Appeal, No. 579, Jan. T., 1896, by plaintiff, from judgment of C.P. No. 1, Phila. Co., March T., 1893, No. 419, refusing to take off nonsuit. Reversed.

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

At the trial it appeared that on November 16, 1892, plaintiff was injured while riding as a passenger in a trailer car attached to the rear of a cable car on Ninth street in the city of Philadelphia. All of the seats of the car were occupied, and plaintiff stood in the passageway, holding to an overhead strap. In her testimony in chief she described the accident as follows: "The cars began to run rough, and I said they must have a greenhorn on running them this way. . . . And the cars kept running more and more rough, and, between after they left Market street, and half way to Spring Garden it seemed to jump and went across the track, and as it pitched across I pitched with it, keeping hold of the strap . . . I said: 'I am too badly hurt to laugh.' . . . It first pitched me this way and then back again. . . . If I had not held on I would have gone to the floor. . . . "Q. Where did you feel bad?" "A. Through my abdomen, my leg and my arms. The most intense pain was through my abdomen. I could not straighten up. By 8 o'clock I was in a perfect agony of pain."

On cross-examination, she testified:

"Q. Was anybody else in the car thrown around? A. EVERYBODY was thrown about. . . . Q. You have ridden in trailers before? A. Very rarely. Q. It went along the same as others, except it was rough? A. The car ran very rough all the way. At the time I felt I was hurt it seemed to jump from the track, and the forward car pulled it back, and this is what I told my friend then. She was frightened because it jumped so. . . . Q. Were you thrown on the floor of the car at any time? A. No, sir; because I held the strap. Q. Were you thrown in anybody's lap? A. I was thrown against my friend, and then back. Q. How often did it happen? A. The severe wrench was when the car jumped, as I said, but all the way it ran very rough."

The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.

Error assigned was refusal to take off nonsuit.

The judgment is reversed with a procedendo.

E. Hunn and F. C. Brewster, for appellant. -- This was a case where the mere happening of an injurious accident raised prima facie a presumption of neglect, and threw upon the carrier the onus of showing it did not exist: R.R. v. Anderson, 94 Pa. 358; Laing v. Colder, 8 Pa. 479; Spear v. R.R., 119 Pa. 67; R.R. v. MacKinney, 124 Pa. 466; Clow v. Traction Co., 158 Pa. 410; Shafer v. Lacock, 168 Pa. 503; Dampman v. R.R., 166 Pa. 523.

J. Howard Gendell, for appellee. -- Where the cause of the accident is shown by plaintiff, there is no room for the application of the rule imposing the burden of proof on the carrier: Hayman v. Penna. R.R., 118 Pa. 508.

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

OPINION

MR. JUSTICE FELL:

The assignment to be considered relates to the refusal of the court to take off a judgment of nonsuit. The plaintiff was a passenger on a street car which was attached to a cable car. When she got on the car all of the seats were taken, and she stood in the passageway holding to an overhead strap. While she was in that position a sudden movement of the car threw her forward, causing injuries to her spine. The point is whether her testimony was sufficient to raise the presumption of negligence and take the case to the jury.

She testified that the car ran roughly when it started, that it continued to run more roughly, and that after she had ridden a few squares it seemed to jump and run across the track. The motion was so violent as to throw her forward, and she would have fallen to the floor if she had not held the strap. On cross-examination she testified that she could not say that the car had left the track, but that it seemed...