Germantown Pass. Railway Co. v. Walling

• Citation: 97 Pa. 55
• Parties: The Germantown Passenger Railway Company <I>versus</I> Walling.
• Decision Date: 24 January 1881
• Court: United States State Supreme Court of Pennsylvania

97 Pa. 55

The Germantown Passenger Railway Company versus Walling.

Supreme Court of Pennsylvania.

January 7, 1881.

January 24, 1881.

January 7th 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1880, No. 336.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

C. H. Gross (with him T. J. Barger), for plaintiff in error.— The undisputed facts, and the evidence adduced by the plaintiff, show that the deceased was guilty of contributory negligence, per se, and the court should have affirmed our points to that effect: City of Harrisburg v. Sayler, 6 Norris 216; McKee v. Bidwell, 24 P. F. Smith 218; Pennsylvania Railroad Co. v. Werner, 6 W. N. C. 520; Passenger Railway Co. v. Boudrou, 11 Norris 475; Pittsburgh & Connellsville Railroad Co. v. McClurg, 6 P. F. Smith 294; West Chester & Philadelphia Railroad Co. v. McElwee, 17 Id. 311; Willis v. Long Island Railroad Co., 32 Barb. 398.

The evidence of damage was too vague, under the requirements of the Act of April 4th 1868, Pamph. L. 58, to justify the verdict of $5000 for plaintiffs. That act provides, that in actions against railroad corporations for personal injuries or loss of life, the defendant shall only be liable for such damage "as the evidence shall clearly prove to have been pecuniarily suffered, not exceeding," &c. The object of the act was to curb the tendency of juries to find large verdicts against railroad companies, upon little or no evidence. There was no evidence here of the pecuniary loss, actual or probable, suffered by the plaintiffs.

Richard P. White, for defendants in error.—The negligence of the defendant company is settled by the verdict. The only question is, was the deceased guilty of contributory negligence per se? When a carrier receives a passenger, the latter is justified in taking such place in the conveyance as may be available. The public cannot be required at their peril, to examine into the sufficiency and safety of the accommodations offered them. During the Centennial exhibition, it was the universal practice of passenger railway companies to over-crowd their cars, and to receive passengers on the platforms and steps. That riding on the front platform of a horse-car is not negligence per se, but is a question for the jury, has been decided in several New York and Massachusetts cases: Ginna v. Second Avenue Railroad Co., 8 Hun 494; Meesel v. Railroad Co., 8 Allen 234; Wilton v. Railroad Co., 107 Mass. 108; Maguire v. Railroad Co., 115 Id. 239; Burns v. Railroad Co., 50 Mo. 140.

On the question of damage, there was more evidence in this case than was thought sufficient in Railroad Co. v. White, 7 Norris 327. But the portion of the charge relating to this subject was not assigned for error; there was no point submitted and no exception taken.

Mr. Justice TRUNKEY delivered the opinion of the court, January 24th 1881.

At the outset the defendant (plaintiff in error) claims but two questions are presented in the assignments: (1.) Was Bernard Walling guilty of contributory negligence per se, so as to make it the duty of the court below to instruct the jury that he could not recover? And (2.) was the evidence of damage too vague under the requirements of the Act of April 4th 1868, to justify a verdict for the plaintiffs below?

In fact, the second question is not raised in the record. As a general rule, where specific instructions were not requested by a proper point, and no exception to such as were given, there is no error for correction. Complaint is not now made of the charge respecting damages; the only errors alleged are the refusal of the defendant's points, and they were upon another branch of the case. Surely if the decedent's death, without fault in him, was caused by the defendant's default, the plaintiffs were entitled to recover. In a charge of marked accuracy and fairness the questions of defendant's negligence and of the decedent's concurrent negligence were submitted to the jury. It is not pretended that the court could have refused to submit to them to decide whether the defendant was negligent, and it is conceded that fact is settled by the verdict. If it was the duty of the court to determine there was contributory negligence by the decedent, all the defendant's points should have been affirmed. This is the sole question now for consideration — the one first stated by defendant.

The facts, claimed to reveal want of due care in the decedent, are not in dispute. "He voluntarily got upon a car so crowded that he was obliged to take a position on the step of the front platform of the car, occupied at the time by two other men, between whom he squeezed into a position, where, for the purpose of retaining his place, he was obliged to hold fast with one hand to the dasher and the other to the iron bar, under the window of the car:" so says the defendant. In addition, the car stopped and received him as a passenger. The driver testifies he knew the car was so full a man could not go through to the back platform. Crowded as it was, the conductor says there was room for more, both inside and on the rear platform. But Walling first tried to get on the rear platform, and failing went to the front.

Conductor, driver and passengers acted as if there was room, so long as a man could find a rest for his feet and a place to hold on with his hands. Nor was that action exceptional. Notoriously, it was very common in 1876, and, perhaps, is not infrequent at...