Lake Shore & Michigan Southern Railway Co. v. Rosenzweig

• Decision Date: 04 October 1886
• Docket Number: 74
• Parties: Lake Shore & Michigan Southern Railway Co. v. Rosenzweig
• Court: Pennsylvania Supreme Court

6 A. 545

113 Pa. 519

Lake Shore & Michigan Southern Railway Co. v. Rosenzweig

No. 74

Supreme Court of Pennsylvania

October 4, 1886

Argued April 30, 1886

ERROR to the Court of Common Pleas of Erie county: Of January Term 1886, No. 74.

This was an action on the case, brought by Louis Rosenzweig against The Lake Shore & Michigan Southern Railway Company to recover damages for injuries sustained through the alleged negligence of the conductor of the defendant, in putting him off a passenger car in which he was a passenger, in a dangerous and improper place. Plea not guilty.

On the trial before GALBRAITH, P.J., the following facts appeared The plaintiff, Louis Rosenzweig, at the time of the injury complained of was an attorney at law, thirty-eight years of age, residing in the city of Erie.

On the 25th day of November, 1883, he had occasion to visit the city of Cleveland, a distance of ninety miles west from the city of Erie.

He purchased a ticket at the defendant's ticket office in Erie for a passage to Cleveland and return, commonly known and designated as a round-trip ticket, as follows, to wit:

"The Lake Shore & Michigan Southern Railway."

"Erie to Cleveland and Return."

"Good only for thirty days from date of sale,"

"And for one continuous passage each way."

9914

"J W. Carey,"

"General Ticket Agent."

Stamped on the back,

"Union Depot, November 25th, 1883."

This kind of ticket had been in use for many years, and by the rules and regulations of the company was a first class ticket, and the holder of such a ticket was entitled to a first-class passage on any and all the passenger express trains (at least until change made in May 14th, 1883). The ticket entitled the holder to all the rights and privileges he would have under a single-trip ticket each way, and being more convenient, and costing a trifle less, the public became accustomed to buy them instead of single-trip tickets. In March or April of 1883, the plaintiff rode from Cleveland to Erie on "Limited Express Train No. 20," or "The Fast New York Express," (being called by each of said names in different time tables,) on a round-trip ticket, being then good on that train, as understood by the officers and agents of the company.

On May 1st, 1883, the officers of the railway company made a change in the rules, which rendered these round-trip tickets not good on one of the company's express trains going west "Limited Express Train, No. 17," and one going east, "Limited Express Train, No. 20," but no notice of this change was given to the public except by the time tables and posters.

The plaintiff testified that he had no actual notice either from time tables, posters, or otherwise, and that he had no knowledge of any rule which rendered his round-trip ticket not good on the train from which he was ejected.

The plaintiff arrived in Cleveland at about 6 P.M. on the Special Chicago Express, and at about 10 P.M. of the same day he went to the Cleveland depot, expecting to return home by train leaving at about that time, called Special New York Express, but he was informed by the ticket agent that said train did not run on Sunday. Then, upon inquiry, the ticket agent informed him, Rosenzweig, that the next train for Erie would leave at 1.22 or 1.42, and further remarked to him, "you will have a long wait," but said nothing about the number or character of the train leaving at that hour. The plaintiff waited in and about the depot until the train came in from the west. The train was made up of three sleepers, a day coach and baggage car. Several persons got off the train at this point, and one other person besides the plaintiff took passage on the train at this point.

When the plaintiff went to the train to get on board, a person standing by the day coach, dressed in the garb of a railway employe, assisting passengers to alight, asked him as to what station he was going, and when informed by him that Erie was his destination, he directed him to take the day coach. The plaintiff then, as directed, stepped into the day coach and took a seat, and being weary soon fell asleep. The train remained in the Cleveland depot about ten minutes.

On being awakened by the call of "Tickets," the plaintiff handed his ticket to the conductor, who, seeing it, reached for the bell cord to stop the train, and as he took the ticket and handed it back, said: "I have orders to put you off; your ticket is not good." The plaintiff replied: "Conductor, you are mistaken; that ticket was purchased yesterday, and was punched, and I rode on it to Cleveland, and the time is not up." The conductor again said: "My orders are to put you off." The plaintiff then said: "Conductor, if there is anything wrong with my ticket here is your fare," (handing him the money). The conductor again said: "My orders are to put you off, and off you must go. Come!" The plaintiff then said: "For God's sake don't put me off here; carry me to a station," and the conductor again said: "My orders are to put you off, and off you must get. I obey orders, if I break owners."

Under these orders of the conductor, the plaintiff was compelled to leave the car and train. When off the train on the ground, the conductor pointed to a light, saying to the plaintiff: "That will take you to the depot," which light the plaintiff soon discovered was from a locomotive coming towards him, and soon passed him. The point where he was ejected from the train is from a little less than a half mile, to a mile and a half, east from the Cleveland depot. (The witnesses differing as to this point.) When the train left him he found himself in the dark and in the midst of many railway tracks, switches, cars, moving trains, locomotives, etc., and a place totally strange and unknown to the plaintiff. From the Cleveland depot, a system of railway yards and switches extend east for a distance of about three miles. On the north side of these tracks for a long distance, and close up to them, is the lake. Immediately on the south side of these tracks, extending from the depot east for one half mile, is a stone wall about seven feet high, surmounted by an iron picket fence, and above this, extending to Summit street, is a high bluff, terraced say about forty-five feet above the tracks. This stone wall extends 900 feet, three to five feet high, east of the over-head bridge. Part of the north track of this system of tracks, and west of the overhead bridge, had been washed out by the action of the waters of the lake. About 200 feet west of the bridge was a ditch running across the tracks about eighteen to twenty-two inches deep, partly uncovered. The south end of this over-head bridge rests on the high bluff, and from this end a path leads still higher up towards the city. The north end of this foot-bridge rests on a high stone wall, and a winding narrow stairway leads down to a small bath-house which is built out over the waters of the lake.

The whole space and distance from the Cleveland depot east, for three miles along this system of tracks, is a very dangerous and unsafe place even in the day time, and the railway company had posters and placards in large type put up at various places along and about these tracks, giving warning to the people to keep off and away from these tracks, on account of the great danger to life and limb.

To escape the dangers and peril in which he found himself placed, he at once started in the direction pointed out to him by the conductor, when he noticed that the light to which his attention was directed by the conductor was a locomotive light, coming towards him, and which soon passed him. He then tried to go southward across the tracks towards the city, but was prevented by a freight train just moving towards the west. He then moved east in order to get around this train but found another train back of it. He then tried to go north, as the safer course to pursue to get away from the tracks and moving trains and engines. In passing across these tracks northward, he saw other cars and engines moving. Noticed some cars moving in a northwesterly direction, and a locomotive then passed him, making it light about him for a moment and then seemingly darker than before. About this time he was hurt by being struck in the rear by some car or moving obstacle, or was tripped, or fell over some obstacle that raised him and threw him up, and he fell. The blow or trip and fall, rendered him for some time unconscious. When he became conscious, his head was down and his arms and limbs drawn up under him. His hat was driven down over his eyes. In attempting to rise he fell over on his side. He then dragged himself across the tracks to a path or ditch; saw a light, heard voices, and called for help. Some railroad men, with lanterns in their hands, came to him, lifted him up, walked with and assisted him some distance toward the depot; they placed him on a railroad tie or plank where he remained some little time, and then dragged himself as best he could toward the depot. When near the depot, a man with a lantern in his hand, came with a baggage truck, on which he placed him and carried him to and through the depot to a carriage, in which he was placed and taken to a hotel. The left leg of his pants was torn at the knee, and a long slit or hole was torn or cut where the rim and crown of the hat join. A physician, Dr. Charles C. Arms (professor of anatomy in the Medical University of Cleveland), was called, who attended the patient professionally for about two weeks, while he remained in the city of Cleveland. He found the pulse weak, feeble and tremulous, and the patient suffering much pain, principally in his back, but also in his head and extremities. Morphia was prescribed, and the next day he gave him a more critical...