Rundle v. Slate Belt Electric Street Railway Company

• Decision Date: 05 March 1907
• Docket Number: 102-1906
• Citation: 33 Pa.Super. 233
• Parties: Rundle v. Slate Belt Electric Street Railway Company, Appellant
• Court: Pennsylvania Superior Court

33 Pa.Super. 233

Rundle v. Slate Belt Electric Street Railway Company, Appellant

No. 102-1906

Superior Court of Pennsylvania

March 5, 1907

Argued December 5, 1906 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Northampton Co.-1905, No 28, on verdict for plaintiff in case of William A. Rundle v. The Slate Belt Electric Street Railway Company.

Trespass to recover damages for personal injuries. Before Trexler, P. J., specially presiding.

The court charged in part as follows:

[The plaintiff seeks to recover in this case because the company has omitted to do something that it should have done, or has done something that it ought not to have done. In other words, he says the company is to blame for this accident that happened to him. And in order to fully understand this question, gentlemen of the jury, it is well for you to consider what the relative duties of a common carrier such as this electric street railway company are in regard to the people it carries for hire. This man paid his fare, and by reason of the payment of that fare there was a contractual relation between them, and it was the duty of this company to carry this man safely and to use all means possible to avoid any accident occurring that it could have foreseen, or ought to have foreseen (could have seen is probably expressing it correctly), and they should provide against such occurrences as the reasonable human foresight could see would happen, or would likely happen.]

[In such cases as this, and this has all been alluded to, the mere happening of an accident presumes that the company was negligent. In an ordinary case, if a man hurts you and causes you harm, you, being the plaintiff, would come into court; and the burden of establishing that negligence, showing that he is to blame for the occurrence, is upon you. But in cases of this character the law says this company has a higher duty than an ordinary person, and that the happening of an accident to one whom it has engaged to carry, one who is in its charge, imputes to them negligence and blame, and that they should produce evidence in the court to show that they were not negligent, and in that way the burden is shifted.

Understand, gentlemen, considering all this case there nevertheless must be found by you that the defendant was negligent in order that you should bring in a verdict against him. The only effect of the rule is that the defendant must show the absence of it, and the burden is upon him to do that. But still the theory of recovery is that negligence was committed.]

[And the plaintiff claims that he is permanently disabled; not totally disabled, but permanently, partially disabled, to use two adverbs; and it is a matter for you to decide whether or not that statement is borne out by the testimony in this case. And if you find that he is permanently disabled, then the question of his expectancy of life might come into this case, and would come into this case, and the Carlisle tables, as they are known, have been introduced into this case; and it is my duty to warn you that these tables are based upon the experience of insurance companies and they take a large number of people and, from their experience, they can find out what the average time is that a man of such age in full life will live, and they may be of some aid to you if you can get that far in the case, to determine how long it is likely that the plaintiff in this case would live. But they are not a positive guide to you; they are not binding upon you. Mr. Rundle might die to-morrow, or he might live sixty years, notwithstanding the Carlisle tables. You, as reasonable men, understand that. The duration of his life cannot be told, cannot be found out. It depends upon his physical condition. It depends upon his acts and conduct, and somewhat upon his social condition in some cases. And so with this warning I will state that these tables may be of some aid to you -- if you find out that Mr. Rundle is permanently disabled -- may be of some aid to you in ascertaining how long he is liable to live.]

Defendant presented this point:

7. It appearing from the plaintiff's own evidence that he continued to receive his usual and regular monthly wages as assistant superintendent, without abatement or interruption from the time of the injury, and that, with the exception of a week or ten days, he performed duties of his employment, although for a time they might not have been to the same extent or as efficient as before, the plaintiff is not entitled to recover as part of his damages, any compensation for loss of earnings. Answer: This is refused; although I am glad this point was submitted, because the court would have probably overlooked this. The evidence in this case is that the slate company, in which the plaintiff was employed, paid their monthly men, as they call them, if they were injured or got sick, irrespective of the work that they performed; and there is some evidence in this case which would indicate that this amount was paid to the plaintiff in this case. No, the evidence is undoubted that the amount was paid to the plaintiff in this case. I think it was ten days from the time that the accident occurred.

Mr. Stewart: The whole period.

The Court: And that for ten days he was disabled and could not go to the quarry, and that after the ten days, he testified, that, in order to occupy his mind, he went to the quarry, but that when he was at the quarry he performed certain duties; that he directed the men, and gave advice and so on. Now, these two facts are before you, the fact that the wages were paid even during the period when he did not work anything; and that the company paid their monthly men whenever they were hurt or got sick, irrespective of what they did. Now, if he was in the quarry and was occupying his position, and the relation between the employer and him was such that he was paid for what he was doing there, even if he did not perform his full duties, then he should not recover. If, however, you can find from the case, or rather, you do find from the case, that this amount was paid to him, not for the work he did there, but as a gratuity, in other words, that the company made him a present and that it was not paid him for the labor performed, then you can give him an amount which he has lost by reason of his loss of wages, irrespective of the amount which he received from his company as a present. The presumption is that when a man goes to work at such a place that he is there by reason of his usual occupation; but there is enough in this case, in my mind, to submit it to you, whether the amount he received after the ten days of idleness was a present from the company, or was wages for the services he performed in and about the quarry.

Verdict and judgment for plaintiff for $ 1,000. Defendant appealed.

Errors assigned were above instructions, quoting them.

Affirmed.

W. S. Kirkpatrick, of Kirkpatrick & Maxwell, for appellant. -- The standard of liability is not employment of all possible means to avoid any accident, nor is the defendant's liability dependent upon the mere fact of an injury to a passenger or the failure to carry him safely. The failure to carry a passenger safely must be due to some negligence or want of care on the part of the carrier, whether that want of care or negligence is an inference to be drawn from the facts and conditions attending the accident, or is shown by affirmative proof of an omission to guard against the accident, which reasonable human foresight could have prevented: Fredericks v. Northern Cent. R. R. Co., 157 Pa. 103; Meier v. Penna. R. R. Co., 64 Pa. 225; Farley v. Traction Co., 132 Pa. 58; Fearn v. West Jersey Ferry Co., 143 Pa. 122; Wadsworth v. Boston Electric Ry. Co., 182 Mass. 572 (66 N.E. 421).

If the plaintiff goes on with his evidence and shows by his witnesses the exact cause of the accident, and discloses no negligence on the part of the defendant, he is not entitled to go to the jury: Buckland v. R. R. Co., 181 Mass. 3 (62 N.E. 955); Lincoln Traction Co. v. Webb, 102 N.W. 258; Rupp v. Sarpy County, 98 N.W. 1042; Kay v. Metropolitan St. Ry. Co., 163 N.Y. 447 (57 N.E. 751).

The mere fact that the passenger was injured does not raise a presumption of negligence so as to shift the burden of proof upon the defendant where the evidence clearly shows the cause of the accident: Keller v. Railway Company, 149 Pa. 65; Penna. R. R. Co. v. MacKinney, 124 Pa. 462.

The ordinary rule is that it is contributory negligence to ride upon a platform while the car is in motion: Thane v. Traction Co., 191 Pa. 249; Gaffney v. Traction Co., 211 Pa. 91.

It is not sufficient to say, as the court did, that the tables were some aid but not conclusive in determining the probable life of the plaintiff: Seifred v. Penna. R. R. Co., 206 Pa. 399; Kerrigan v. Penna. R. R. Co., 194 Pa. 98.

Russell C. Stewart, for appellee. -- That the contract is to carry the passenger safely, plainly appears from the authorities: R. R. Co. v. Norton, 24 Pa. 465; Sullivan v. Philadelphia & Reading R. R. Co., 30 Pa. 234; Herstine v. Lehigh Valley R. R. Co., 151 Pa. 244; Fox v. Philadelphia, 208 Pa. 127.

That the learned judge of the court below was right in his statement of the rule, as to the burden of proof, and the way in which it shifts, we need only refer to a few of the many cases: Laing v. Colder, 8 Pa. 479; Sullivan v Philadelphia & Reading R. R. Co., 30 Pa. 234; Meier v. Penna. R. R. Co., 64 Pa. 225; Spear v. P. W. & B.R. R. Co., 119 Pa. 61; Madara v. Shamokin & Mount Carmel Electric Ry. Co., 192 Pa. 542; McCafferty v. Penna. R. R. Co., 193 Pa. 344; Rauch v. Smedley, 208 Pa. 175; Sowers v. McManus, 214 Pa. 244; Clark v. Lehigh Valley R....