Keller v. Hestonville, M. & F. Pass. R. Co.

• Decision Date: 25 April 1892
• Docket Number: 276
• Citation: 24 A. 159,149 Pa. 65
• Parties: Keller, Appellant, v. Hestonville, Mantua & Fairmount Pass. Ry. Co
• Court: Pennsylvania Supreme Court

24 A. 159

149 Pa. 65

Keller, Appellant, v. Hestonville, Mantua & Fairmount Pass. Ry. Co

No. 276

Supreme Court of Pennsylvania

April 25, 1892

Argued April 6, 1892

Appeal, No. 276, Jan. T., 1892, by plaintiff, Henry Keller by his next friend, Adam Keller, from judgment of C.P. No. 2 Phila. Co., Sept. T., 1886, No. 293, compulsory nonsuit.

Case for personal injuries caused by alleged negligence of the defendant.

On the trial, at the conclusion of the plaintiff's evidence, a nonsuit was entered, which the court afterwards refused to take off. The facts appear in the following opinion of the court by FELL, J., refusing to take off the nonsuit.

"The plaintiff sues to recover for injuries received while a passenger on a car of the company, defendant.

"The plaintiff, who at the time of his injury was fourteen years old, lived with his parents near 32d and Spring Garden streets, and was employed in a store at Eighth and Chestnut streets. It was his custom to ride to his place of employment every morning on the defendant's cars.

"On the morning in question he left his home with an elder brother, and when on the pavement in front of their home saw a car approaching. They walked to the middle of the street and signaled the driver, who applied the brakes and reduced the speed until the horses came to a walk, when they both safely got on the step of the car.

"The car was an open summer car, with a step on either side extending its whole length.

"The step was 7 3/4 inches wide and 13 inches below the floor of the car.

"Back of the step and resting on it was a board 4 inches wide above this an open space 3 3/4 inches wide, and above this another board 5 1/4 inches in width, which extended to the floor of the car.

"The space between the back of the step and the edge of the floor was not entirely closed, but at the bottom and resting on the step was a board 4 inches high, above it an open space of 3 3/4 inches, and above this a board 5 1/4 inches wide which reached to the floor.

"The plaintiff testified: 'My brother signaled the driver and he slacked; when the car got to us it was going slow enough to get on. I got on the side step safely. Was on it firmly with both feet. I endeavored to get up from step to floor of the car. Lifted my left foot up and finding a resting place put my weight on it and it gave way. My foot gave way with the weight of my body and it slipped forward. I did not know there was an opening, I supposed I was stepping on the floor -- with one hand I had hold of the bracket of the seat.'

"This is the only testimony which throws any light on the cause of the accident.

"It was shown by other witnesses that the plaintiff felll over backwards with his foot caught in the open space, and was dragged some distance, and sustained very serious injuries.

"It appears from this testimony that the plaintiff got on the car safely, and in the attempt to pass from the step to the floor of the car placed his foot on the top of a board which was 4 inches high and back of the step. While in that position his foot gave way because of the weight of his body and slipped forward.

"It follows that if the defendant is liable it is because of the negligent construction of the car.

"If the space between the step and the floor had been entirely closed this accident would not have happened.

"The case then is narrowed to this inquiry: In the exercise of reasonable care and prudence would...