Neslie & Wife v. Second & Third Streets Passenger Railway Co.

• Citation: 6 A. 72,113 Pa. 300
• Decision Date: 04 October 1886
• Docket Number: 112
• Parties: Neslie and Wife v. Second and Third Streets Passenger Railway Company
• Court: Pennsylvania Supreme Court

6 A. 72

113 Pa. 300

Neslie and Wife v. Second and Third Streets Passenger Railway Company

No. 112

Supreme Court of Pennsylvania

October 4, 1886

Argued April 7, 1886

ERROR to the Court of Common Pleas No. 4, of Philadelphia county Of January Term 1886, No. 112.

This was an action of trespass on the case brought by William Neslie and Margaret Neslie, his wife, in right of said wife against The Second and Third Streets Passenger Railway Company, to recover damages for injuries alleged to have been sustained by Margaret Neslie by falling on the step of a street car on which she was a passenger, by reason of the negligence of the defendant in permitting ice to remain on the step, and in permitting a passenger unnecessarily to stand in such a position on the platform of the car as to prevent her protecting herself by taking hold of the dasher of the car. Plea, not guilty.

The facts of the case sufficiently appear in the opinion of the Supreme Court.

The Court, after the plaintiffs had closed their evidence, on motion of the defendant granted a compulsory nonsuit, which the Court in banc subsequently refused to take off.

The plaintiffs thereupon took this writ, assigning for error the refusal of the Court to take off the nonsuit.

Judgment reversed and a procedendo awarded.

James P. Dolman and John Dolman, for plaintiffs in error. -- 1. (a) The plaintiff being a passenger the defendant was bound to transport safely. By showing a failure to do this the plaintiff established a prima facie case, without affirmative proof of any negligence on the part of the defendant. The burden was upon the latter of showing a state of facts which relieved it from liability: R.R. Co. v. Goodman, 12 P.F.S. 329; Meier v. R.R. Co., 14 Id., 225; Laing v. Colder, 8 Barr, 482; Sullivan v. R.R Co., 6 Casey, 234; Shearman & Redfield on Neg., § 280; Redfield on Railways, § 1760 and notes.

(b) The testimony on the part of the plaintiff, however, contained sufficient evidence of negligence in the defendant to send the case to a jury. The duty of a carrier of passengers is to exercise the highest possible degree of care, diligence, and foresight: Meier v. R.R. Co., 14 P.F.S. 225; 2 Redfield on Railways, 170-190; Laing v. Colder, 8 Barr, 482; Gillis v. R.R. Co., 9 P.F.S., 129; Sullivan v. R.R. Co., 6 Casey, 234; R.R. Co. v. Boyer, 1 Out., 91; Boss v. R.R. Co., 1 A. 9.

It has been laid down in many cases that the obligation of a common carrier of passengers extends to furnishing a safe and convenient means of exit: See R.R. Co. v. White, 6 W.N.C., 516.

(c) It is contended still further, that the defendant was chargeable with negligence for unnecessarily allowing its platform to be occupied in such a way as to interfere with the safe exit of passengers. To hold otherwise, as matter of law, involves the assertion that such an act would never amount to negligence. If, under any circumstances, permitting an unnecessary occupation of the car platform would amount to negligence, unless it would under all circumstances, the jury alone can determine whether in a particular case it was justifiable. For a carrier to permit its car platform to be unnecessarily crowded in such a way as to directly cause the injury of a passenger attempting to alight, can hardly be claimed to reach the extraordinary degree of care required of it; and unless that proposition can be broadly affirmed, the question is always one for the jury, where it is shown that an unnecessary occupation of the platform contributed to an injury.

2. (a) If the case was decided in the Court below on the ground of contributory negligence, it is submitted that the learned Court erred in sustaining the nonsuit, and that the case should have been submitted to the jury. To hold as the Court below did, was to establish plaintiff's negligence as matter of law. This necessitates a consideration of the nature of negligence in law. It can be determined by the court only.

When the standard is fixed, when the measure of duty is defined by the law and is the same under all circumstances: R.R. Co. v. McIlwee, 17 P.F.S. 311. Where the precise measure of duty is determinate, the same under all circumstances: McCully v. Clark, 4 Wr., 406. A fixed rule, the same under all circumstances: R.W. Co. v. Henrice, 11 Norris, 431.

Plaintiff had a right to rely upon the assumption that the defendant would perform its clear duty of keeping its steps in a fit condition for use, or of restraining passengers from using them: Erie City v. Schwingle, 10 Harris, 384; Humphreys v. Armstrong Co., 6 P.F.S. 204.

Plaintiff's duty was to exercise ordinary and reasonable care, and there is a long and unbroken line of authorities in this State, that in such a case the question is always for the jury: Payne v. Reese, 4 Out., 301; Johnson v. Bruner, 11 P.F.S. 58; Railway Co. v. Walling, 9 W.N.C., 467; R.R. Co. v. McIlwee, 17 P.F.S. 311; R.R. Co. v. White, 6 W.N.C., 516.

Samuel Gormley (Thorn with him), for defendant in error. -- There is nothing in the evidence to show that the defendant did any act that in any way contributed to the accident, but that it occurred entirely from the negligence of the plaintiff in getting off the car.

When in the opinion of the Court the uncontradicted evidence does not warrant the jury in inferring negligence by the defendant as the proximate cause of an injury, the Court should direct a verdict for him: Goshorn v. Smith 11 Norris, 435; Phila. & Reading R.R. v. Yerger, 23 P.F.S. 121.

When there is no evidence from which negligence could reasonably be inferred, it is settled law that the jury shall not be permitted arbitrarily and without evidence to infer that there was negligence: Baker v. Fehr, 1 Out., 70; Phila. & Reading R.R. v. Schertle, Id., 450.

A municipality is not liable for injuries which are the result of nothing more than the ordinary slipperiness caused by recent snow and ice: Mauch Chunk v. Kline, 4 Out., 119; City of Erie v. Magill, 5 Id., 616; Denhart v. City of Phila., 15 W.N.C., 214; Fleming v. City of Lock Haven, 15 Id., 216.

Before MERCUR, C.J., GORDON, PAXSON,...