Sligo v. Philadelphia Rapid Transit Co.
| Decision Date | 16 March 1909 |
| Docket Number | 274 |
| Citation | 224 Pa. 135,73 A. 211 |
| Parties | Sligo, Appellant, v. Philadelphia Rapid Transit Company |
| Court | Pennsylvania Supreme Court |
Argued January 19, 1909
Appeal, No. 274, Jan. T., 1908, by plaintiffs, from judgment of C.P. No. 3, Phila. Co., June T., 1905, No. 3,858, on verdict for defendant in case of George D. Sligo and Florence Sligo, his wife, v. Philadelphia Rapid Transit Company. Affirmed.
Trespass to recover damages for personal injuries. Before FERGUSON, J.
The facts are stated in the opinion of the Supreme Court.
The court gave binding instructions for defendant. Plaintiffs appealed.
Error assigned was in giving binding instructions for defendant.
Judgment affirmed.
Thos J. Duff, with him H. B. Painter, for appellants. -- There is no difference in the duty owing by carriers of passengers by horse railroad and by steam. Passenger carriers bind themselves to carry safely those whom they take into their coaches as far as human care and foresight will go; that is, to the care and diligence of a very cautious person: Wynn v. Central Park, etc., R.R. Co., 38 N.Y. St. Repr. 181 (14 N.Y.S. 172); Poulin v. Broadway, etc., R.R. Co., 61 N.Y. 621.
It is the duty of a street railway company to stop its cars at suitable places for passengers to leave them and remain stationary long enough to enable them to do so safely: Jagger v. People's St. Ry. Co., 180 Pa. 436; Crissey v. Hestonville, etc., Pass. Ry. Co., 75 Pa. 83; Philadelphia City Pass. Ry. Co. v. Hassard, 75 Pa. 367; Del., Lackawanna & Western R.R. Co. v. Napheys, 90 Pa. 135; Meier v. Railroad Co., 64 Pa. 225.
The question of contributory negligence, and negligence where there is conflicting testimony, is always a matter for the jury: Crissey v. Hestonville, etc., Pass. Ry. Co., 75 Pa. 83; Wilson v. Railroad Co., 177 Pa. 503; Baker v. Irish, 172 Pa. 528.
It is further submitted that while there may be a difference between street and steam railway arising from the lack of control which a street railway has over the street which would differentiate it in regard to an absolutely safe landing for its passengers, yet it is required to select its point of discharging passengers with the highest degree of care; and further, that with a knowledge of the defects of the road on which it agrees to carry the passengers it must take every precaution to select proper stopping places and must be held to have contracted to carry the passenger with a full knowledge of the government of the road and the defects and dangers thereof, and is therefore responsible: Peters v. Rylands, 20 Pa. 497; Rauch v. Lloyd & Hill, 31 Pa. 358; Richmond City Ry. Co. v. Scott, 86 Va. 902; S.C. 11 S.E. Repr. 404; Farish v. Reigle, 11 Gratt. 697; N.Y., P. & N.R.R. Co. v. Cooper, 85 Va. 939 (9 S.E. Repr. 321); Cartwright v. Ry. Co., 52 Mich. 606 (18 N.W. 380); Terre Haute, etc., Ry. Co. v. Buck, 96 Ind. 346; McGee v. Ry. Co., 92 Mo. 208 (4 S.W. Repr. 739); Maverich v. R.R. Co., 36 N.Y. 378; Citizens' Street Ry. Co. v. Twiname, 111 Ind. 587 (13 N.E. Repr. 55); Smith v. St. Paul City Ry. Co., 32 Minn. 1 (18 N.W. 827); Topeka City Ry. Co. v. Higgs, 38 Kan. 375 (16 Pac. Repr. 667); City, etc., Ry. Co. v. Findley, 76 Ga. 311; Barrett v. Third Ave. R.R. Co., 45 N.Y. 628; Hill v. Ninth Ave. Ry. Co., 109 N.Y. 239 (16 N.E. Repr. 61).
Thomas Leaming, with him Chester N. Farr, Jr., for appellee. -- If it was so dark immediately after sunset that the planks were totally invisible then the plaintiff cannot charge the defendant with negligence in failing to perceive that the car was not precisely opposite them and yet escape the consequences of contributory negligence: Patton v. Traction Co., 132 Pa. 76.
The decision which, upon facts exactly parallel in the minutest particular, rules this case, is Mahoney v. Philadelphia Rapid Transit Co., 214 Pa. 180.
That defendant is not responsible for the peculiarities of the road upon which a passenger alights from a street car, was decided by this court in Keater v. Scranton Traction Co., 191 Pa. 102; Scanlon v. Phila. Rapid Transit Co., 208 Pa. 195; Bland v. Ry. Co., 13 Pa.Super. 93.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
The learned trial judge submitted this case to the jury which after long deliberation reported a disagreement, whereupon a verdict for defendant was directed and judgment entered thereon. It is clear as indicated by the course of the trial that the learned court in the first instance entertained some doubt as to the liability of the defendant, but after more mature deliberation concluded that there could be no recovery under the facts and the rules of law applicable thereto. The accident occurred on the Old York road upon which is laid a street railway line with the consent of the municipality. This road is of the general character of a country highway with the usual ditches, banks, crossings, drains and culverts necessary or convenient to the maintenance of such a highway. At the point where Eckard avenue intersects with York road a somewhat temporary sort of bridge made of planks had been constructed over the gutter, thus affording a passageway for vehicles and travelers using the highways. The street railway had nothing to do with the construction or maintenance of the highways or the so-called bridge in question. It happened that the avenue was wider than the bridge was long, but the public authorities were responsible for this situation and it was not either the right or the duty of the street railway company to exercise any control over the highways, nor did the burden rest upon it to furnish a different kind of bridge, or platform or landing place at that point. When municipal consent was obtained to lay the tracks of the street railway upon the public road, it became the duty of the railway company to conform its line to the established grade of the highway and to adjust its operation to the conditions existing on the ground. This eliminates from the case all questions as to the construction of said approaches or places to alight. No such duty rested upon the appellee company at the point of accident. As to the questions whether the car was stopped at a proper place, and whether notice should have been given the passenger before alighting we agree that the case at bar is ruled by Mahoney v. Rapid Transit Company, 214 Pa. 180. The cases are almost parallel in their facts and to distinguish them in principle would require a refinement too technical to have any force in the practical application of the law. The injured passenger was riding in an open summer car with a running board on either side. On one side of the track was a broad, smooth, level, macadam surface and on the other side there was a little depression in the nature of a roadside ditch used for drainage purposes. It was made by grading the roadway under municipal regulation from the traveled part of the highway to the outer side of the same and was of the general character of ditches or gutters alongside of country roads. Passengers on the street railway could alight on either side of the car and in alighting could step down on the level macadam road on one side or on the receding gutter side on the other. In the present case the complaining passenger stepped off on the gutter side and in so doing the step being a little high, she lost her balance and fell, thus receiving the injuries for which damages are sought to be recovered in this action. The accident occurred on a May evening, in the twilight. The weight of evidence shows that it occurred from 7 to 7:15 o'clock in the evening, although the injured lady said it was later. The car had not yet been lighted and one of the witnesses testified it was light enough to read a newspaper. Under these circumstances, we think, this case is squarely ruled by the Mahoney case above cited.
Judgment affirmed.
DISSENT BY: MESTREZAT
I cannot agree with the disposition made of this case by the majority of the court, and as it affects every individual in the state who has occasion to use a street railway, I will submit the reasons for my conclusion. The case is disposed of by an opinion which cites a single authority to sustain its conclusion but which in my judgment, as I shall hereafter point out, is not an authority for the principle which controls the case at bar. I believe the rule announced by the majority is so much at variance with the well-settled doctrine on the subject that it will invite legislation which, in seeking to correct the effects of the decision, may impose too great responsibility upon street railway companies.
The material facts of the case which were sufficient to send it to a jury are not in dispute, or if in dispute were sufficiently supported by evidence to require the case to be submitted to the jury. The female plaintiff was a passenger on one of defendant's cars going north on the east side of Old York road, and desired to alight at Eckert avenue. She signaled the conductor, who stopped the car just short of the usual place of stopping at Eckert avenue. The plaintiff, sitting in the third seat from the rear of the car, arose after it had stopped and proceeded to alight by way of the running board at the east side of the car. This was the proper and safe side for passengers to leave the car. She passed the conductor, and as she was stepping from the car fell into a ditch and was injured. The accident occurred between 7:30 and 8 o'clock on May 8, 1905. It was dark or dusk. She thought she was alighting at the usual place, and testified that before making the step from the car she looked to the ground and "they all looked the same, the ground looked the same;" that "I supposed I was stepping...
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