Kerns v. Pennsylvania R. Co.

• Decision Date: 02 January 1951
• Parties: KERNS v. PENNSYLVANIA R. CO.
• Court: Pennsylvania Supreme Court

77 A.2d 381

366 Pa. 477

KERNS v. PENNSYLVANIA R. CO.

Supreme Court of Pennsylvania.

January 2, 1951

John J. Kerns, Sr., brought action for trespass against The Pennsylvania Railroad Company for injuries which plaintiff sustained when he was unexpectedly pushed from behind by another person while descending a set of stairs in defendant's railroad station. The Court of Common Pleas No. 4 of the County of Philadelphia at No. 4188 December Term, 1947, (Tried in the Court of Common Pleas No. 7 of Philadelphia County), Sloane, J., entered a judgment for plaintiff on a verdict of $15,000 after dismissing defendant's motion for judgment non obstante veredicto and the defendant appealed. The Supreme Court, No. 266 January Term, 1950, Drew, C. J., held that railroad could not be held liable for injuries incurred by business invitee in its station when he was pushed down stairs by drunken man, in absence of showing that conduct of drunken man before the occurrence had been such as to indicate a disposition to indulge in physically violent conduct and to give rise to a reasonable apprehension of injury to other parties.

Judgment reversed and judgment entered for defendant.

Theodore Voorhees, F. Hastings Griffin, Jr. and Barnes, Dechert, Price, Myers & Clark, all of Philadelphia for appellant.

J George Lipsius and Lipsius, Biele & Lipsius, all of Philadelphia, for appellee.

Before DREW, C. J., and ALLEN M. STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.

DREW Chief Justice.

The sole question raised by this appeal is whether The Pennsylvania Railroad Company, defendant, is liable to John J. Kerns, Sr., plaintiff, for injuries incurred when he was pushed down a set of steps in defendant's station by a drunken man. Plaintiff received a verdict of $15,000 and the learned court below entered judgment on that verdict after dismissing defendant's motion for judgment n. o. v.

On March 29, 1946, plaintiff was a passenger on one of defendant's trains from Wilmington to Philadelphia. The train arrived at Broad Street Station, Philadelphia, at approximately 8:20 P.M. Plaintiff got off the train and proceeded into the waiting room on the upper level of the station where he procured a timetable and stopped for a drink of water. While there he noticed two intoxicated men talking loudly about the March of Dimes campaign and waving their hands. Plaintiff then walked down to the lower or street level of the station and sat down to study his timetable. Shortly after he had taken his seat he observed that one of the inebriated men, Dooley by name, had also come downstairs and was still talking loudly about the March of Dimes. After spending twenty to thirty minutes in the station, plaintiff started to walk down a set of stairs leading to the Broad Street subway when he was pushed from behind by Dooley, causing him to fall down the steps and receive serious injuries.

The court below submitted the case to the jury on the theory that if defendant knew or should have known of the presence of Dooley in the station in his drunken condition, defendant should have protected plaintiff and its failure to do so renders it liable. This was a palpably erroneous instruction. It is conceded by all parties that the rule properly governing this case is that laid down in Barlick v Baltimore & Ohio R. R. Co., 41 Pa.Super. 87, 92: ‘ The carrier is * * * liable for injuries to a passenger resulting from the negligent or unlawful acts of a fellow passenger if prior to the accident the conduct of the offending party has been such as to indicate a disposition to indulge in physically violent conduct and give...