Hull v. Bowers

• Decision Date: 27 March 1922
• Docket Number: 6
• Parties: Hull, Appellant, v. Bowers
• Court: Pennsylvania Supreme Court

117 A. 189

273 Pa. 429

Hull, Appellant, v. Bowers

No. 6

Supreme Court of Pennsylvania

March 27, 1922

Argued March 7, 1922

Appeal, No. 6, Jan. T., 1922, by plaintiff, from order of C.P. Adams Co., Nov. T., 1919, No. 64, refusing to take off nonsuit in case of Charles Hull v. Harry E. Bowers. Reversed.

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

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take it off. Plaintiff appealed.

Error assigned was refusal to take off nonsuit.

The order refusing to take off the nonsuit and the judgment in favor of defendant are reversed, with a procedendo.

John A Hoober, with him R. E. Wible, for appellant. -- The fact that plaintiff was sitting on the platform of the car does not preclude recovery as his unusual position was not the cause of the accident, and in no way contributed thereto: McClung v. Cab Co., 252 Pa. 478; McCaffrey v. Lukens, 67 Pa.Super. 231.

J. Donald Swope, for appellee. -- Plaintiff was guilty of contributory negligence as a matter of law: Bainbridge v. Traction Co., 206 Pa. 71; Kirchner v. Ry., 210 Pa. 45; Harding v. Transit Co., 217 Pa. 69; Wood v. Traction Co., 36 Pa.Super. 483; McDade v. Transit Co., 215 Pa. 105; Ramsey v. Ry., 35 Pa.Super. 598; Gaffney v. Traction Co., 211 Pa. 91.

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

OPINION

MR. JUSTICE SCHAFFER:

Plaintiff sued to recover damages for personal injuries; at the close of his case the court entered a nonsuit which it refused to take off; plaintiff appeals.

The facts are not in dispute. Appellant was employed by the Hanover Light, Heat & Power Company, and was riding on a work car belonging to it, running on its electric railway. The car was without windows or platform and had a door at the rear which opened on a step, extending an inch or two beyond the line of the body of the car; plaintiff was seated on the floor of the car with his feet on this step. There was space inside the car where other employees were standing, and where plaintiff could have remained had he so desired.

Defendant was backing a closed automobile out of an alley extending at right angles to the street on which the work car was passing; when the car came opposite the alley the backing automobile crashed into it, seriously injuring appellant. There was full opportunity for the defendant to observe the approaching car.

The view of the court below, when it entered the nonsuit, and the contention of appellee's counsel before us, is that plaintiff, in occupying the position on the car he did, which was one of known danger, was guilty of contributory negligence, and therefore cannot recover, relying upon such cases as Lehigh Valley R.R. Co. v. Greiner, 113 Pa. 600; Wood v. Chester Traction Co., 36 Pa.Super. 483; Thane v. Scranton Traction Co., 191 Pa. 249; Bainbridge v. Union Traction Co., 206 Pa. 71; Kirchner v. Oil City Street Railway Co., 210 Pa. 45; Gaffney v. Union Traction Co., 211 Pa. 91; McDade v. Phila. Rapid Transit Co., 215 Pa. 105; and Harding v. Phila. Rapid Transit Co., 217 Pa. 69, holding it to be negligence to ride on the platform or side-step or running-board of a car. These cases would be controlling against plaintiff's right of recovery against his employer, the operator of the car, but as the suit is against a third person, the owner and operator of the automobile which backed into the car, they have no application. The car had the same privilege to traverse the street as any other vehicle, and those riding on it, the right to assume that other users of the highway would be regardful of them, and take due care not to collide with the car to their injury. It certainly could not be maintained, if plaintiff had occupied a similar position to that which he had on the car, in an automobile or wagon driving along the street, and defendant had backed into it, and injured him, that defendant's position in the automobile or wagon would impute any negligence to him; the fact that he was riding in a trolley car under the circumstances here appearing can make no difference in the application of legal principles affecting the users of highways.

In McClung v. Penna. Taximeter Cab Co., 252 Pa. 478, where...