Reber v. Pittsburg & Birmingham Traction Co.

• Decision Date: 04 January 1897
• Docket Number: 47
• Citation: 179 Pa. 339,36 A. 245
• Parties: Christ. Reber v. The Pittsburg & Birmingham Traction Company, Appellant
• Court: Pennsylvania Supreme Court

36 A. 245

179 Pa. 339

Christ. Reber v. The Pittsburg & Birmingham Traction Company, Appellant

No. 47

Supreme Court of Pennsylvania

January 4, 1897

Argued October 28, 1896

Appeal, No. 47, Oct. T., 1896, by defendant, from judgment of C.P. No. 2, Allegheny Co., Oct. T., 1893, No. 702, on verdict for plaintiff. Affirmed.

Trespass for personal injuries. Before EWING, P.J.

The facts appear by the opinion of the Supreme Court.

Defendant's points and answers thereto among others were as follows:

2. If the jury find that plaintiff's negligence contributed in any degree, however slight, to his injury, there can be no recovery. Answer: The second point is affirmed, subject to the explanation contained in the general charge as to negligence and the proofs thereof. [1]

4. If the jury find from the evidence that plaintiff knew that the car was going at a rapid rate of speed, and that he was acquainted with the descending grade of the street and the location of the curve where the accident occurred, and if they further find that the position which plaintiff occupied on the edge of the platform was, under the circumstances, a dangerous position, then that was negligence on his part, and he cannot recover. Answer: The fourth point is refused. If you find in addition to the facts given in the point that the plaintiff at or before the time, and under the circumstances could reasonably have taken a position evidently safer either inside the car or on the platform, and did not do so, he was guilty of negligence, and cannot recover. [2]

7. It was the plaintiff's duty to go into the proper, usual and safe place inside the car, if it was possible to do so, and if the jury find from the evidence that there was room for the plaintiff inside the car, and that plaintiff's position on the platform was a dangerous position, and that plaintiff's injury would not have happened if he had been within the car, then plaintiff was guilty of contributory negligence in remaining on the platform, and cannot recover. Answer: The seventh point is refused as put. The word "possible" is too strong a term. The words "reasonably practicable," would better measure plaintiff's duty. [3]

9. Under all the evidence, the verdict must be for the defendant. Answer: The ninth point is refused. [4]

Verdict and judgment for plaintiff for $8,000. Defendant appealed.

Errors assigned among others were (1-4) above instructions, quoting them.

The judgment is affirmed.

A. W. Duff, with him W. F. Wise, for appellant. -- The transformation from horse cars to electric and cable cars has introduced new conditions the nonobservance of which constitute negligence: Winter v. Pleasant Valley Street Ry., 153 Pa. 28.

The facts in relation to plaintiff's position and his knowledge of the surrounding circumstances, as testified to by him, a rapidly moving car, with the lights out, going down grade, approaching a curve, were undisputed, and it was therefore the duty of the court to pass upon the question of plaintiff's contributory negligence, and not submit the question to the jury: Richards v. Willard, 38 W.N.C. 407; Aiken v. Ry., 142 Pa. 47; Brown v. Barnes, 151 Pa. 564; Carroll v. P.R.R., 12 W.N.C. 348; P.R.R. v. Bell, 122 Pa. 65; Seamans v. R.R., 174 Pa. 421. One who does not avoid a known danger when he might have done so is guilty of contributory negligence: Ry. Co. v. Taylor, 104 Pa. 306; Randall v. Frankfort Ry. Co., 139 Pa. 464; Germantown Pass. Ry. v. Walling, 97 Pa. 55; Erskine v. McNichol, 13 W.N.C. 224. A mere scintilla does not justify the submission of the case to the jury: Easton v. Reinhart, 13 W.N.C. 389.

Where reasonable appliances are placed by which a standing passenger in a crowded car may hold, he is bounded to use them: West Phila. Ry. Co. v. Whipple, 5 W.N.C. 70.

W. J. Brennan, for appellee. -- It is not negligence either on the part of the passenger or on the part of a street railway company that an adult, or a person reasonably competent to take care of himself, should occupy by permission a platform of a crowded passenger car: Sandford v. Ry. Co., 136 Pa. 84; Dennis v. R.R., 165 Pa. 624; West Phila. Pass. Ry. v. Gallagher, 108 Pa. 524; Germantown Pass. Ry. v. Walling, 97 Pa. 55; 13th & 15th Street Pass. Ry. v. Boudrou, 92 Pa. 475; Werle v. Long Island Ry., 98 N.Y. 650; Meesel v. Lynn & Boston R.R., 8 Allen, 234; Merwin v. Manhattan Ry., 55 N.Y. 608; Baker v. Westmoreland & Cambria Gas Coal Co., 157 Pa. 593; Fisher v. Ry. Co., 131 Pa. 292.

What constitutes negligence in a given case is generally a question for the jury: R.R. v. Jones, 128 Pa. 308; Turnpike Co. v. Railroad Co., 54 Pa. 345; Railroad Co. v. Stinger, 78 Pa. 219; Penna. R. Co. v. Coon, 111 Pa. 430; Schum v. Penna. R. Co., 107 Pa. 8; Taylor v. Canal Co., 113 Pa. 162; Lee v. Woolsey, 109 Pa. 124; Longenecker v. Penna. R. Co., 105 Pa. 329; Neslie v. Passenger Ry. Co., 113 Pa. 300; Winter v. St. Ry., 153 Pa. 28.

The case cited by appellant, Aiken v. Frankfort Ry. Co., 142 Pa. 47, is a very different case from the one at bar, in this, that the plaintiff, Aiken, was familiar with the position of the post and its surroundings, and had been repeatedly warned about getting on at the place that he did, also that after the plaintiff got upon the step there was no difficulty in passing into the car; others had done so.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE FELL:

The only question to be considered is whether the case should have been withdrawn from the jury. In considering this we must assume that the plaintiff has established these facts Late at night he got on a crowded car of the defendant company to go to his home. There was no room inside, and he stood with a number of other passengers on the rear platform. His position on the platform was a comparatively safe one, as he stood between the controller and the...