McBride v. McNally

• Decision Date: 05 January 1914
• Docket Number: 42,41
• Parties: McBride v. McNally, Appellant
• Court: Pennsylvania Supreme Court

89 A. 1131

243 Pa. 206

McBride v. McNally, Appellant

Nos. 41, 42

Supreme Court of Pennsylvania

January 5, 1914

Argued October 21, 1913

Appeals, Nos. 41 and 42, Oct. T., 1913, by defendant, from judgment of C.P. Allegheny Co., Aug. T., 1910, No. 393, on verdict for plaintiffs in case of W. D. McBride and Margaret E. McBride, his wife, v. William McNally. Affirmed.

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

The opinion of the Supreme Court states the facts.

Verdict for W. D. McBride for $1,500 and for Margaret E. McBride for $2,500 and judgment thereon. Defendant appealed.

Errors assigned were various instructions to the jury, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant, n.o.v.

L. C Barton, with him Wm. J. Brennen, for appellant.

Rody P Marshall, with him Meredith R. Marshall, for appellee.

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

OPINION

MR. JUSTICE STEWART:

The appellant, operating on the Ohio river an excursion steamboat of which he was owner, had engaged to carry the members of a certain church society on an excursion up and down the river, for a lump sum. At the appointed time he conducted his boat to the appointed landing where the passengers were to embark, and having landed, with the bow of his boat up the stream, extended the gangplank to admit the passengers. The appellee, Mrs. McBride, who had purchased a ticket for the excursion from the society started to board the steamboat by way of this gangplank, when, in consequence of the gangplank turning or tilting, she was thrown into the river and injured. The action was brought to recover damages for the injuries she sustained. The negligence complained of was, first, failure to properly and securely fasten the gangplank at both ends, and, second, failure to properly fasten the boat, and, third, the making an improper landing for the purpose of taking on passengers. The issues of fact were determined by the jury adversely to the defendant. The assignments of error relate to the instructions of the court with respect to the law of the case. In his charge the learned trial judge gave the following instructions:

"The simple fact that the accident happened, if it happened upon some means of transportation, this being a common carrier, threw the burden on the defendant to satisfy you by the weight of the evidence as to how it occurred, and that it occurred without negligence on his part."

"But if you find that she (the plaintiff) had bought a ticket in the regular way and was a prospective passenger, then the defendant owed to her the duties of a passenger, and he owed her, -- not insurance -- the common carrier does not insure the safety and lives of his passengers; but he is held to the highest degree of care in caring for them when they are in the act of boarding his means of conveyance, and while they are on the means of conveyance which he provides, which in this case was the steamer."

The ground of complaint is that the instructions charged appellant with a higher degree of care with respect to passengers and intending passengers than the law exacts under conditions here; that the appellant was not, at least pro hac vice, a common carrier of passengers, and therefore not bound to the highest degree of care, but was simply a bailee bound to the exercise of ordinary care, and liable only for ordinary...