Germantown Passenger R. R. Co. v. Brophy
| Decision Date | 28 January 1884 |
| Parties | Germantown Passenger Railway Co. <I>versus</I> Brophy. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK JJ.
ERROR to the Court of Common Pleas No. 2 of Philadelphia county: Of January Term, 1883, No. 408.
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Samuel Gustine Thompson for plaintiff in error.—This is a case where it would have been impossible for the plaintiff to have been injured without his having negligently placed his arm in a dangerous position. While the testimony was conflicting as to its precise position at the time of the accident, it was undisputed that the only evidence of collision apparent upon the cars was the rubbing of the overhanging shute or roof; the absence of marks on the body of the car would indicate that the cars did not touch except above the windows. No other passenger was injured, and the plaintiff would not have been if he had sat as the others sat. The opinion of the Court in Railroad Co. v. McClurg, 6 P. F. S., at p. 297, applies to the facts of this case. See also Todd v. Railroad Co., 7 Allen, 207; Clark v. Eighth Ave. R. R. Co., 36 N. Y., 139; Railroad Co. v. Jones, 5 Otto, 443.
Rudolph M. Schick (Jas. S. Nickerson with him) for the defendant in error.
The jury found on most ample evidence, that the plaintiff in error was guilty of negligence in the act which caused the injury.
The company has two railway tracks separated by so narrow a space on a curve that when its cars were passing in different directions they came in collision, whereby the defendant in error, a passenger in one of the cars, was injured. The main contention is whether he was guilty of contributory negligence in producing the injury to his arm. The evidence was conflicting as to his position at the time the collision occurred. The company claimed and gave some evidence that his arm projected out of the window. He testified that while the windows were open they stuck up about two inches, and he had his arm against the top of the window sash, and inside of both windows, and that the collision threw his arm out of the window.
The learned judge charged that if he sat with his arm out of the window when the collision occurred, he was guilty of negligence and could not recover. Not satisfied with this the counsel for the company requested the Court to charge if the...
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Smith v. St. Louis Transit Co.
... ... (1) ... From the collision of cars resulting in injuries to a ... passenger, under the adjudications in this State, arises the ... twofold presumption of the carrier's ... 404; ... Railway v. Phillips (Tex.), 74 S.W. 793; Railway ... v. Brophy, 105 Pa. St. 38; Railway v. Higgs, 38 ... Kan. 375; Elliott v. Railway, 18 R. I. 707; ... Geitz ... 139; ... Federal Street and Pleasant Valley Railway Co. v ... Gibson, 96 Pa. 83; Germantown Passenger Railway Co ... v. Brophy, 105 Pa. 38; Dahlberg v. Railway, 32 ... Minn. 404; Jones v ... ...
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