Passenger Railway Co. v. Boudrou

• Decision Date: 02 February 1880
• Parties: Thirteenth and Fifteenth Street Passenger Railway <I>versus</I> Boudrou.
• Court: Pennsylvania Supreme Court

92 Pa. 475

Thirteenth and Fifteenth Street Passenger Railway versus Boudrou.

Supreme Court of Pennsylvania.

January 19, 1880.

February 2, 1880.

January 19th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY and STERRETT, JJ. GREEN, J., absent

Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 115.

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R. P. White, William Rotch Wister and George W. Thorn, for plaintiff in error.—The plaintiff cannot recover unless he himself has been free from all negligence which contributed to the accident: 2 Redfield on Railways, sect. 103, 4th ed. The injury done to plaintiff was directly in consequence of his being on the back platform. The question whether his position there contributed to his injury was for the jury. The law is well settled that what is and what is not negligence in a particular case is generally a question for the jury and not for the court. It is always a question for the jury when the measure of duty is ordinary and reasonable care: West Chester & Philadelphia Railroad Co. v. McIlwee 17 P. F. Smith 311; Forks Township v. King, 3 Norris 233; City of Harrisburg v. Saylor, 6 Id. 216; Detroit & Milwaukee Railroad v. Van Steinburg, 17 Mich. 99; Railroad Company v. Stout, 17 Wallace 657; Huelsenkamp v. Citizens Railway Co., 37 Mo. 537. Ordinary and reasonable care was certainly the measure of plaintiff's duty, and if so it was for the jury.

The primary use of platforms is for ingress and egress to and from the cars. They are not intended to carry passengers, and if they are so used it is for the convenience of the passengers themselves. Each passenger can demand a seat, and if one is not provided he can descend from the car and take another. Plaintiff, however, knew that the seats in the car were fully occupied, and he got upon the car notwithstanding that fact. He would not wait for the next car to come along in a few minutes. Experience proves that it is impossible to supply enough cars to meet the requirements of the public at hours when places of amusement close, and when many hundreds of people are sometimes suddenly thrown into our leading thoroughfares, and such the testimony shows was the actual case here.

The platform of a car is surely more dangerous to a passenger than the body of the car, and into the body of the car plaintiff could confessedly have passed without trouble, as several people did go in and come out after he got on. The case of the Central Railroad Co. of N. J. v. Cook, 1 W. N. C. 319, was overruled by Pennsylvania Railroad Co. v. Langdon, ante, page 21.

John Scollay and F. Carroll Brewster, for defendant in error.— The court ruled in exact accordance with the principle stated in 2 Redfield on Railways, sect. 103, 4th ed.: "The company shall be guilty of some negligence, and the passenger should not have been guilty of any want of ordinary care and prudence, which directly contributed to the injury, since no one can recover for an injury of which his own negligence was in whole or part the proximate cause."

In an action for an injury occasioned by the negligence of a defendant, the plaintiff cannot be held guilty of contributory negligence, unless he had some reason to expect danger from some natural and probable quarter, and voluntarily allowed himself or his property to remain in that danger, or voluntarily placed himself or his property in that danger: Gray & Bell v. Scott and Wife, 16 P. F. Smith 345; McGrew et al. v. Stone, 3 Id. 436; Humphreys v. Armstrong County, 6 Id. 204; Reeves v. Del., Lack. & W. Railroad Co., 6 Casey 454; Brown v. Lynn, 7 Id. 510; Penna. Railroad Co. v. Kilgore, 8 Id. 292; Penna. Railroad Co. v. McTighe, 10 Wright 316; O'Donnell v. Allegheny Valley Railroad Co., 9 P. F. Smith 239; Greenland v. Chaplin, 5 Exch. 243. In this case the danger was so remote that plaintiff was not bound to guard against it: Corrigan v. Sugar Refinery, 98 Mass. 577.

The plaintiff may recover "where the plaintiff's negligence is remote and the defendant's proximate; or, in other words where the plaintiff's negligence was a condition of the injury, but not its juridical cause." Whart. on the Law of Negligence, sect. 323, page 292. The right to sue of the legal representatives of a person killed by the negligence of another, was first granted by the legislature, and the legislature, therefore, can modify that right from time to time, or it may abolish it altogether. Consequently, the part of the act limiting damages for injuries resulting in death to be recovered by the relatives of the person killed to $3000, this court has held to be constitutional, for the reason that, among other things, the legislature gave the right, and it can also take it away with perfect propriety. See Langdon v. Penna. Railroad Co., supra.

Mr. Justice TRUNKEY delivered the opinion of the court, February 2d 1880.

The chief debatable question is presented in the sixth, seventh, eighth and tenth specifications of error. Defendant claims that the plaintiff was guilty of negligence which contributed to the accident, and that this was a question for the jury. The rule cited by its counsel is correct, namely, that to render a railway company liable to a passenger, the company shall be guilty of some negligence or omission which, mediately or immediately, produced or enhanced the injury; and the passenger shall not have been guilty of any want of ordinary care and prudence, which directly or indirectly contributed to the injury; since no one can recover for an injury of which his own negligence was in whole, or in part, the proximate cause: 2 Redfield on Rail., sect. 193. This rule permits recovery where the passenger was negligent, if there was no causal connection between his negligence and the injury. Hence, it is said in the same section, "Although the plaintiff's misconduct may have contributed remotely to the injury, if the defendant's misconduct was the immediate cause of it, and with the exercise of prudence he might have prevented it, he is not excused." And in Whart. on Neg., sect. 803, the principle is thus stated, "In order to defeat recovery of damages arising from the defendant's negligence, the plaintiff's negligence must have been the proximate and not the remote cause of the injury; in other words, must be its juridical cause, and not merely one of its conditions." The author further says, sect. 324, "The negligence, to make it a juridical cause, must be such, that by the usual course of events it would result, unless independent moral agencies intervene, in the particular injury. * * * In other words, to put the same doctrine into the language made familiar to us by the adoption of the terms `proximate' and `remote,' my `remote' negligence will not protect a person who, by `proximate' negligence does me an injury." In England, the general rule is, that the plaintiff, in an action for negligence, cannot succeed if he has himself been guilty of any negligence or want of ordinary care which contributed to the accident. And a well-established qualification of the rule is, that though the...