Murray v. Philadelphia & Reading Railway Co.

• Decision Date: 19 April 1915
• Docket Number: 237
• Citation: 249 Pa. 126,94 A. 558
• Parties: Murray v. Philadelphia & Reading Railway Co., Appellant
• Court: Pennsylvania Supreme Court

94 A. 558

249 Pa. 126

Murray v. Philadelphia & Reading Railway Co., Appellant

No. 237

Supreme Court of Pennsylvania

April 19, 1915

Argued January 18, 1915

Appeal, No. 237, Jan. T., 1914, by defendant, from judgment of C.P. No. 1, Philadelphia Co., June T., 1913, No. 967, on verdict for plaintiff, in case of Arthur N. Murray v Philadelphia & Reading Railway Company. Affirmed.

Trespass to recover damages for personal injuries. Before PATTERSON J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff for $20,000, which the court subsequently reduced to $14,000 and entered judgment on the verdict as reduced. Defendant appealed.

Error assigned, among others, was in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n.o.v.

The assignments of error are overruled, and the judgment is affirmed.

C. Andrade, Jr., with him William Clark Mason and J. Frederick Jenkinson, for appellant. -- The relation of passenger and carrier did not exist between plaintiff and defendant: Rose v. Penna. R.R. Co., 17 Pa. D.R. 57; Lewis v. Penna. R.R. Co., 220 Pa. 317.

The case of Coleman v. Penna. R.R. Co., 242 Pa. 304, does not rule the case at bar.

The fact that the car gave a jerk and that such jerk threw the plaintiff down is not evidence of negligence: Chicago, Burlington & Quincy R.R. Co. v. Hazzard, 26 Ill. 373; Muller v. Second Ave. R.R. Co., 48 N.Y. Superior Ct. 546; International & Great Northern Ry. Co. v. Copeland, 60 Tex. 325; Hayes v. Forty-Second St. & Grand St. Ferry R.R. Co., 97 N.Y. 259; Jacksonville St. Ry. Co. v. Chappell, 21 Fla. 175; Stager v. Ridge Ave. Pass. Ry. Co., 119 Pa. 70; De Soucey v. Manhattan Ry. Co., 15 N.Y.S. 108; Bradley v. Ft. Wayne & Elmwood Ry. Co., 94 Mich. 35; Saunders v. Chicago & N.W. Ry. Co., 6 S.D. 40; Hite v. Metropolitan St. Ry. Co., 130 Mo. 132; Bradley v. Second Ave. Ry. Co., 35 N.Y.S. 918; Etson v. Ft. Wayne & Belle Isle Ry. Co., 68 N.W. 298; Black v. Third Ave. Ry. Co., 2 N.Y. App. D. 387; Heyward v. Boston & Albany R.R. Co., 169 Mass. 466; Nelson v. Lehigh Val. R.R. Co., 25 A.D. 535; Ayers v. Rochester Ry. Co., 156 N.Y. 104; Sims v. Metropolitan St. Ry. Co., 65 A.D. 270; Frohriep v. Lake Shore & Michigan So. Ry. Co., 131 Mich. 459; Timms v. Old Colony St. Ry. Co., 183 Mass. 193; Yazoo & Mississippi Valley R.R. Co. v. Humphrey, 83 Miss. 721; Faul v. North Jersey St. Ry. Co., 70 N.J.L. 795; Hedrick v. Missouri Pacific Ry. Co., 195 Mo. 104; Conroy v. Detroit United Ry., 139 Mich. 173; Needham v. Interborough Transit Co., 48 Misc. 522; Norminton v. Interborough Transit Co., 48 Misc. 526; Flynn v. Interborough Rapid Transit Co., 48 Misc. 529; Kiefer v. Brooklyn Heights R.R. Co., 111 A.D. 404; Adams v. New York City Ry. Co., 116 A.D. 315; Molloy v. New York City Ry. Co., 98 N.Y.S. 211; Bollinger v. Interurban St. Ry. Co., 50 Misc. 293; Jameson v. Boston Elec. Ry. Co., 193 Mass. 560; Sanderson v. Boston Elec. Ry. Co., 194 Mass. 337; De Yoe v. Seattle Electric Co., 53 Wash. 588; Crowley v. Boston Elec. Ry. Co., 90 N.E. Repr. 532; Patterson's Admr. v. Louisville & Nashville Ry. Co., 128 S.W. Repr. 1068; Donovan v. Pullman Company, 91 N.E. Repr. 882; Levin v. Philadelphia & Reading R.R. Co., 228 Pa. 266.

Wm. T. Connor, with him John R. K. Scott, for appellee. -- Plaintiff was entitled to the rights of a passenger: Lockhart v. Lichtenthaler, 46 Pa. 151; Lackawanna & Bloomsburg R.R. Co. v. Chenewith, 52 Pa. 382; Coleman v. Penna. Railroad Company, 242 Pa. 304.

The sudden stopping of the train was prima facie negligence: Clow v. Pittsburgh Transit Co., 158 Pa. 410; Dixey v. Philadelphia Traction Co., 180 Pa. 401; St. Clair v. Edison Electric Light Co., 38 Pa.Super. 228; Tilton v. Philadelphia Rapid Transit Co., 231 Pa. 63; Cahill v. Philadelphia Rapid Transit Co., 52 Pa.Super. 561; Hartman v. Western Maryland Ry. Co., 246 Pa. 460.

The evidence of negligence was not overcome by evidence that the act of stopping was properly performed and recovery for plaintiff was therefore proper: Hartman v. Western Maryland Co., 246 Pa. 460.

Before MESTREZAT, POTTER, ELKIN, MOSCHZISKER and FRAZER, JJ.

OPINION

MR. JUSTICE POTTER:

This was an action of trespass brought by the plaintiff to recover damages for personal injuries which he had sustained through the alleged negligence of the defendant company. It appears from the record that on November 24, 1911, plaintiff was employed as a porter on a Pullman car which was attached to a train of the defendant company, running from Philadelphia to Williamsport. According to the testimony of the plaintiff, as the train was approaching Mahanoy Junction it was suddenly and violently stopped, and plaintiff, who was at the time engaged in sweeping out the rear of the car, was thrown violently down, with such force as to render him unconscious. It was alleged that the injuries which he received, resulted in rendering him a cripple, and that since the accident he has been unable to work, or to care for himself. It was contended on behalf of defendant, that the evidence did not show negligence upon its part, and further that under plaintiff's contract of employment, in connection with a contract between defendant and Pullman's Palace Car Company, the plaintiff had waived or released all claims for damages against both companies. At the trial a point for binding instructions in favor of defendant was refused by the trial judge, and the question of defendant's negligence was submitted to the jury. The verdict was in favor of plaintiff. A motion for a new trial was refused, as was a motion for judgment for defendant non obstante veredicto, and judgment was entered on the verdict. Defendant has appealed. The first assignment of error is to the refusal of defendant's point requesting binding instructions, and it raises all the questions urged by counsel for appellant. The decision in Coleman v. Penna. R.R. Co., 242 Pa. 304, is controlling here. It broadly reiterated and affirmed the conclusion "that in every case where one, not employee or trespasser, is carried on a railroad, the undertaking on the part of the railroad company is as common carrier, and the party though he be not a passenger in the ordinary meaning of that word, is yet entitled to the rights of a passenger so far as his safe transportation is concerned." In that case also there was involved the right to recover for injuries to a Pullman car porter. Reference to the record shows that the language in the contracts of employment in the two cases, is almost identical. A clause waiving the rights of a passenger and releasing the railroad from all claims on account of injury was in the Coleman case, signed by the porter. But it was held that notwithstanding the terms of the agreement, his widow was entitled to recover damages against the railroad. Our Brother STEWART, after an elaborate consideration of the question, and of the authorities, said (p. 320): "It being conceded that plaintiff's husband was rightfully where he was when the accident occurred, and that he was not an employee of the defendant company, the question of his actual relation to the defendant company is not, as we have said, the governing one. The one question we have considered is whether the defendant company was acting in its capacity of common carrier in conveying the plaintiff's husband on the occasion when the accident occurred. Our conclusion is that it was so acting. Not only considerations of public policy invite us to so hold, but the plain provision in the Constitution which forbids railroad companies from engaging in any business except as common carriers required it. It follows that the agreement made by the plaintiff's husband exempting defendant from responsibility for its negligence was not available as a defense to the action." The facts of the present case bring it clearly within the principle thus announced, so that we have only to consider whether there was evidence from which the jury may have reasonably inferred that the defendant company was guilty of negligence which caused the plaintiff's injury. The negligence averred in the declaration was in connection with the operation of the train and locomotive, whereby the train was suddenly and violently stopped, or slowed down. Reference to the charge of the trial judge shows that the jury were instructed that no presumption of negligence upon the part of defendant arose out of the fact of the accident. He said, "the burden is upon the plaintiff to prove to you that the train upon which he was riding was slowed down or stopped in a negligent manner, and that any injuries which he received were the direct result of the carelessness and the negligence of the employees of the defendant company," and again, "Remember that the burden of proving this is upon the plaintiff. He must satisfy you that the train was slowed down or stopped in a careless and negligent fashion, and that he was injured as a result of such careless slowing down or stopping. Has the plaintiff satisfied you, by the testimony, that the train was slowed down and stopped in an unusual and careless fashion, and that he was injured as a result of the careless slowing down or stopping of the train? If he has not, as I have already said, your verdict must be for the defendant. If he has, then your verdict must be for the plaintiff." An examination of the testimony shows that evidence was offered, which if credited by the jury, was sufficient to reasonably justify...