Miller v. Philadelphia Rapid Transit Co.

• Decision Date: 17 May 1911
• Docket Number: 168
• Parties: Miller v. Philadelphia Rapid Transit Company, Appellant
• Court: Pennsylvania Supreme Court

80 A. 1108

231 Pa. 627

Miller v. Philadelphia Rapid Transit Company, Appellant

No. 168

Supreme Court of Pennsylvania

May 17, 1911

Argued February 28, 1911

Appeal, No. 168, Jan. T., 1910, by defendant, from judgment of C.P. Delaware Co., June Term, 1909, No. 72, on verdict for plaintiff in case of Margaret Miller v. Philadelphia Rapid Transit Company. Affirmed.

Trespass to recover damages for death of plaintiff's husband. Before JOHNSON, P.J.

The facts are stated in the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $6,662.50. Defendant appealed.

Errors assigned were (1) refusal to withdraw a juror; (2) refusal of binding instructions for defendant.

The judgment is affirmed.

Thomas Leaming, with him E. A. Howell, for appellant. -- It was the duty of the court to withdraw a juror and continue the case upon counsel transgressing the rule so often laid down by this court forbidding inflammatory and improper suggestions to the jury: Saxton v. Pittsburg Rys. Co., 219 Pa 492; Wagner v. Hazle Twp., 215 Pa. 219; Walsh v Wilkes-Barre, 215 Pa. 226; Com. v. Swartz, 37 Pa.Super. 507.

Binding instructions for the defendant should have been given because there was no proof of negligence in the mere fact that the man fell from the car: Cline v. Rys. Co., 226 Pa. 586.

Binding instructions for the defendant should have been given because the decedent was guilty of contributory negligence: McDade v. Phila. Rapid Transit Co., 215 Pa. 105; Burns v. Pass. Ry. Co., 213 Pa. 143.

William C. Alexander, with him Frank B. Rhodes, for appellee. -- The appellate court will not reverse a judgment on a verdict because the trial judge refused to withdraw a juror and continue the case on account of improper remarks of counsel to the jury, where it appears that the verdict was not excessive or unreasonable, and that the judge warned the jury not to be influenced or affected in any way by any improper and questionable remarks of Brenisholtz v. Penna. R.R. Co., 229 Pa. 88; Com. v. Sarves, 17 Pa.Super. 407; Moore v. Neubert, 21 Pa.Super. 144; Com. v. Striepeke, 32 Pa.Super. 82; Shaffer v. Coleman, 35 Pa.Super. 386; Behrens v. Mountz, 37 Pa.Super. 326.

Where a person, without fault on his part, is suddenly placed in a position of difficulty or danger he is not bound to the use of the best judgment in his efforts to extricate himself: Cannon v. Traction Company, 194 Pa. 159; Stover v. Penna. R.R. Co., 195 Pa. 616; Cohn v. May, 210 Pa. 615; McCurdy v. Traction Co., 15 Pa.Super. 29; McCaw v. Traction Co., 205 Pa. 271; Reber v. Traction Co., 179 Pa. 339; Malone v. R.R. Co., 152 Pa. 390; Bumbear v. Traction Co., 198 Pa. 198.

There was negligence on the part of defendant: McCurdy v. Traction Co., 15 Pa.Super. 29; McCaw v. Traction Co., 205 Pa. 271; Reber v. Traction Co., 179 Pa. 339.

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

OPINION

MR. CHIEF JUSTICE FELL:

The plaintiff's husband was killed by falling from the running board of a trolley car. No witness saw him at the moment that he fell, but there was testimony tending to show that he was thrown from the running board by the motion of the car when it entered a switch at a rapid rate of speed or that he was knocked off by striking a standing car on the main track. This track and the switch track were so near each other that there were but twenty-eight inches between the sides of the cars and but two inches between the running boards. The car started as soon as the deceased stepped on the running board and the accident happened within a very brief space of time afterwards, estimated by some witnesses as eight or ten seconds. During this time the deceased was endeavoring to get into the car which was crowded with passengers. This testimony would have justified an inference of negligence on the part of the defendant and it disclosed no negligence on the part of the deceased. It was submitted with the distinct instruction, that a passenger who remains on the running board of a car an unnecessary length of time, when there is room inside, is negligent and there can be no recovery for his injury or death.

The court was asked to withdraw a juror because of the use of the following language by the plaintiff's counsel in addressing the jury: "We had to go into the enemy's camp to get the evidence; to get justice from this powerful wealthy and rich corporation." The reversals in a number...