Johnson v. West Chester & Philadelphia Railroad Co.

• Decision Date: 29 January 1872
• Parties: Johnson <I>versus</I> The West Chester and Philadelphia Railroad Company.
• Court: Pennsylvania Supreme Court

70 Pa. 357

Johnson versus The West Chester and Philadelphia Railroad Company.

Supreme Court of Pennsylvania.

January 15, 1872.

January 29, 1872.

January 15th 1872.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. WILLIAMS, J., at Nisi Prius

Error to the Court of Common Pleas of Chester county: No. 176, to January Term 1872.

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W. Mac Veagh and J. J. Lewis, for plaintiffs in error.

W. Darlington, for defendants in error.

The opinion of the court was delivered, January 29th 1872, by AGNEW, J.

This case appears to have been carefully tried by the learned and able judge in the court below. Yet, after an attentive examination, we are led to the conclusion, that the rule of concurrent negligence was held a little too closely against the plaintiff, and the province of the jury rather trenched upon. The judge himself states the well-known rule that, "generally what constitutes negligence in a particular case, is a question for the jury:" Kay v. Pennsylvania R. R. Co., 15 P. F. Smith 273, 274; Pennsylvania Canal Co. v. Bentley, 16 P. F. Smith 30. But we think his error was in laying down as a rule of law, a matter which was only an element in the evidence, to wit: that if the train was distinctly running on the track, so as to be perceptible to those alongside, the plaintiff was guilty of negligence in attempting to enter upon the train, and could not recover. The following passages in the charge, perhaps most clearly denote the spirit and meaning of the instruction given to the jury:

"Yet, if the train was entirely still when he stepped from the platform by its side, it is not suggested that there was any want of care in the attempt to enter. If, however, it was not entirely still — was in the act of starting — taking up the slack, as one of the witnesses has denominated it, but was not yet distinctly under way, when he attempted to enter, then it is for you to determine whether he was or was not guilty of carelessness in making the attempt, encumbered as he was." "The defendant has asked us to instruct you, that if the train was in motion when the plaintiff attempted to get upon it, he was guilty of negligence, and cannot recover. If by the term "motion" is meant running upon the track — distinctly running so as to be perceptible to those alongside — the point is affirmed, otherwise it is not. There may have been some motion incident to starting, and preceding it, yet of so slight a character, that the law cannot pronounce an attempt to enter at the time negligence; but must leave it to the jury to judge of it in the light of all the circumstances. But if the train was distinctly running upon the track when the plaintiff attempted to enter, then he was guilty of negligence, and cannot recover."

It is evident, that the meaning which a jury would draw from the charge was, that if the preparation for starting was over, and the train was under way, that, no matter how slow the motion, yet if the running of the train on the track was distinctly visible to a bystander, the plaintiff's time to enter was past, and his attempt to get on the train would be such culpable negligence in law as would bar his recovery. That such a rule may be applicable to some cases, may be true, though we do not now affirm it. But clearly we are not to leave out of view, in all cases, the conduct of the railroad company in producing the result, and the natural and probable effect that conduct has had upon the mind of the passenger in influencing his act. There cannot be an inexorable rule so unbending that no circumstances begotten by the railroad company itself, shall not change it. Even when a train is distinctly under way, there are cases, and this was one, where it must be left to the jury to say whether the danger of going aboard was so apparent that it would be culpable negligence in the passenger to attempt it. Here the West Chester Railroad Company had a running arrangement with the Philadelphia and Baltimore Central Railroad Company, by which their trains met at the Baltimore Junction, and passengers were received from each on through-tickets. The plaintiff's ticket is not questioned. Under such an arrangement, it is the duty of each company to give a reasonable time for the transfer of passengers and their baggage. In this instance, it appears that the West Chester train began to move almost as soon as the Baltimore train stopped. It seems that the conductor of the latter signalled the conductor of the former, that he had no passengers for the West Chester train. But the plaintiff, who had a through-ticket, was not responsible for this mistake. Reasonable time should be allowed to...