Philadelphia & W.C. Traction Co. v. Kordiyak

• Decision Date: 06 May 1909
• Docket Number: 26.
• Citation: 171 F. 315
• Parties: PHILADELPHIA & W.C. TRACTION CO. v. KORDIYAK.
• Court: U.S. Court of Appeals — Third Circuit

171 F. 315

PHILADELPHIA & W.C. TRACTION CO. v. KORDIYAK.

No. 26.

United States Court of Appeals, Third Circuit.

May 6, 1909

Wm. I Schaeffer, for plaintiff in error.

Edward D. Mitchell, for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and BRADFORD, District judge.

BRADFORD District Judge.

Frank Kordiyak, the defendant in error, a subject of the Czar of Russia, brought an action of trespass in the Circuit Court of the United States for the Eastern District of Pennsylvania, against the Philadelphia & West Chester Traction Company, hereinafter referred to as the defendant for damages for injuries to his person resulting, as alleged from the negligence of the defendant, and recovered a judgment against it for $2,000. For the reversal of that judgement this writ of error is before us. In the statement of claim it is, among other things, averred in substance that the plaintiff on or about April 4, 1908, became a passenger in a trolley car operated by the defendant on its line from Sixty-Ninth and Market streets, Philadelphia, to Ardmore, Pennsylvania; that the defendant so carelessly, negligently and wrongfully operated the car that the 'plaintiff was thrown and ejected from said car and sustained serious and permanent injuries to his body and limbs, by having his left leg amputated, his skull and left arm fractured, and other serious injuries to his body. ' There was testimony given by the plaintiff to the effect that April 4, 1908, after it had become dark he with three friends together got on a trolley car of the defendant at Manoa Road at a point to the west of and beyond the city limits in order to return to Philadelphia; that the car conductor came to him for his fare 'and I went to look in my pocket and I found it had dropped through'; that the conductor spoke to him in English, which he does not understand, and then 'took me with the hand and threw me out of the car'; that 'I had my hand in the pocket and he came and grabbed hold of me by this arm and took and threw me off, and I couldn't stop myself very well because I still had this hand in my pocket'; that it was his vest pocket with a hole in it through which his money had slipped to the lower portion of his vest; that when he was thrown off the car it was moving fast; that he hit his head against something and does not remember whether any other part of his body was hurt because 'my head was hit and I seemed to have lost consciousness'; that 'when I started to remember, I started to get up on my hands, and just then something struck me, and then I don't remember any more'; that he had not been drinking that day; that when the conductor asked him for his fare 'I didn't say anything, I just looked for the money'; and that while so looking for his money the conductor 'stood in front of me for a while, and then he took me by the arm and threw me off the car.' There is testimony in behalf of the defendant directly contradictory of that given by the plaintiff. The conductor who is charged by the plaintiff with having thrown him from the car testified to the effect that he did not lay his hands on the plaintiff; that 'I didn't do anything to him. I just merely asked him for his fare and left him looking for it'; and that the plaintiff left the car voluntarily and of his own motion. The same conductor testified that the same car while moving westward on its return trip from Sixty-Ninth and Market streets passed the plaintiff at or near Cedar Lane about 8:30 o'clock p.m.; and that the plaintiff at that time was walking on the southerly side of the West Chester pike on the macadamized sidewalk eastwardly toward Sixty-Ninth street. There is also testimony to the effect that the car from which the plaintiff testified he was ejected left Ardmore that night at 3 minutes past 8 o'clock on its eastwardly run; that another car operated by the defendant on the same road left Ardmore on a similar run at 33 minutes past 8 o'clock; that at 48 minutes past 8 o'clock the later car struck the plaintiff about 250 feet east of State Road; that State Road is about four-fifths of a mile to the east of Montrose Cemetery; and that Cedar Lane is from 1,100 to 1,200 feet east of Montrose Cemetery and from 2,800 to 3,000 feet west of State Road.

The motorman of the car which struck the plaintiff testified among other things, to the effect that he stopped his car at state road and when he received from the conductor the signal to go ahead, 'I started my car on half speed, five points, and I crossed over State Road, I judge near a hundred feet, and I threw my power off, and went a hundred feet further-- I judge about two hundred and fifty feet east of State Road-- and I saw this man step up on the rail going east towards Sixty-Ninth street terminal, and as soon as I seen the man I blew my whistle and threw my emergency air on and hollered at him, and he paid no attention at all; he didn't make any effort to get off the track or anything else, he just kept on coming east toward Sixty-Ninth street terminal, and I struck him, and I stopped my car and he was laying right at the back step'; that the man who was struck when the witness first saw him 'was stepping up crossing the rail-- the south rail of the east bound track. * * * He was getting up from the ditch on to the track. He was on the south side of the track. He wasn't on the pike side. * * * He came from the ditch up on to the track.' There was also some testimony of the witness Simon to the effect that the plaintiff when seen...