Mack v. Pittsburgh Railways Company

• Decision Date: 11 January 1915
• Docket Number: 3
• Citation: 93 A. 618,247 Pa. 598
• Parties: Mack v. Pittsburgh Railways Company, Appellant
• Court: Pennsylvania Supreme Court

93 A. 618

247 Pa. 598

Mack v. Pittsburgh Railways Company, Appellant

No. 3

Supreme Court of Pennsylvania

January 11, 1915

Argued October 12, 1914

Appeal, No. 3, Oct. T., 1914, by defendant, from judgment of C.P. Allegheny Co., Nov. T., 1910, No. 514, on verdict for plaintiff in case of Viola Mack v. Pittsburgh Railways Company. Reversed.

Trespass to recover damages for personal injuries. Before HAYMAKER, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $6,000 and judgment thereon. Defendant appealed.

Errors assigned were in refusing to direct a verdict for defendant in refusing to enter judgment for defendant n.o.v. and instructions to the jury relating to the measure of damages.

The third assignment of error is sustained, and the judgment is reversed with a venire facias de novo.

Craig Smith, with him Clarence Burleigh, and William A. Challener for appellant.

Ralph P. Tannehill, for appellee.

Before FELL, C.J., BROWN, MESTREZAT, POTTER and STEWART, JJ.

OPINION

MR. JUSTICE MESTREZAT:

This is an action of trespass by a street railway passenger to recover damages for injuries which she alleges she sustained by reason of the negligent conduct of the railway company. The plaintiff, a young woman of twenty-two years of age, with two companions, Miss Rippey and Mrs. Darling, entered by the rear door a closed car of the Pittsburgh Railways Company, the defendant, on Penn avenue at the corner of Lang Avenue on Penn avenue at the corner of Lang avenue in the eastern part of the City of Pittsburgh, about four o'clock on the afternoon of April 30, 1910, and rode to the corner of Ninth street and Penn avenue, a distance of about six miles. When the car stopped, the plaintiff followed by her companions went forward for the purpose of alighting at the front door of the car, and after she stepped down from the body of the car on the platform and was about leaving the platform, both her feet flew up and she fell into the street. No person left the car in front of her. She alleges, and introduced evidence to show, that there was switch-grease or tar on the front platform on which she slipped and fell. Miss Rippey, who was immediately behind her, testified that she saw a "piece of grease or tar on the platform," about the size and thickness of her hand, that she saw the imprint of the plaintiff's heel where she had slipped along in it, and that was what caused her to fall. She further testified that the grease had dust on it, and that there were footmarks, other than the plaintiff's, which indicated that it had been tramped. Mrs. Darling saw the plaintiff fall, and testified that there was a pretty good sized grease spot on the platform, that it was all flattened down and looked as if it had been walked in, that she saw the print of the plaintiff's heel where she had slipped, and that the grease was like that used on switches in the car tracks.

The defendant company introduced testimony but it was entirely of a negative character. It showed there had been no report of the accident to the company, that it had a system of inspection at the barn, and regular men were assigned to inspect certain cars, which included the duty to clean the platform every evening. No record was kept of the cars inspected.

The learned court below submitted the case to the jury and a verdict was returned for the plaintiff. From the judgment entered thereon, the defendant company has taken this appeal. The first assignment alleges error by the court in not directing a verdict for the defendant, the second assignment is to the refusal of the court to enter judgment for the defendant notwithstanding the verdict, and the third assignment relates to that part of the charge dealing with the measure of damages.

The defendant contends that the grease or tar on the car platform was a substance entirely foreign to the operation of the car, and may fairly be presumed was dropped there inadvertently by another, possibly by some passenger who had boarded or alighted before the plaintiff met with her accident, and that, therefore, its presence on the platform, under the circumstances shown by the evidence, was not sufficient to convict the defendant of negligence. It is further claimed by the defendant's counsel that the jury was not aided in ascertaining the length of time the grease was on the platform by the fact that there was dust on the grease, as that might have been blown in at the opening of the door for the plaintiff to alight, nor by the footmarks in the grease, as they might all have been made by one person in changing his position. In other words, the defendant alleges that the evidence did not show that its employees placed the grease on the platform, or when it was placed there, or that it had been on the platform long enough for the conductor or motorman to have discovered it by exercising proper care of inspection.

We do not agree with the defendant company's contention that the evidence was not sufficient to send the case to the jury on the question of the company's negligence. While a carrier is not bound to anticipate unusual and unexpected perils to its passengers, either in transit or while entering or leaving its cars, yet its servants must be diligent at all times in protecting passengers from danger by the exercise of the highest degree of care which is reasonably practicable. It was the duty of the defendant, as a carrier of passengers for hire, not only to transport the plaintiff safely but to provide reasonably safe means of ingress and egress to and from the car. If this grease made the platform unsafe, it was the duty of the defendant's servants in charge of the car to remove it, and if they knew it was there or should have known by the exercise of proper care, and failed to remove it and it caused the plaintiff's...