Sulger v. Philadelphia & Reading Railway Company
| Decision Date | 20 April 1914 |
| Docket Number | 23 |
| Citation | 245 Pa. 128,91 A. 235 |
| Parties | Sulger v. Philadelphia & Reading Railway Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 25, 1914
Appeal, No. 23, Jan. T., 1914, by defendant, from judgment of C.P. No. 2, Philadelphia Co., Dec. T., 1910, No. 1925, on verdict for plaintiff in case of Virginia Grace Sulger v Philadelphia & Reading Railway Company. Affirmed.
Trespass to recover damages for death of plaintiff's husband. Before ORMEROD, P.J.
Plaintiff's husband, while a passenger upon an excursion train operated by the defendant railway company and while passing from the rear platform of a passenger coach to a baggage car fitted up as a refreshment car was thrown through the lurching of the train while taking a curve and was killed. There was no safe passageway into the refreshment car. Other facts appear by the opinion of the Supreme Court.
Verdict for plaintiff for $7,000, and judgment thereon. Defendant appealed.
Errors assigned, among others, were refusal to direct a verdict for the defendant and refusal to enter judgment for defendant non obstante veredicto.
Judgment affirmed.
Wm. Clarke Mason, for appellant. -- The accident did not result from negligence imputable to the defendant: Trout v. Electric Co., 236 Pa. 506; Willis v. Armstrong County, 183 Pa. 184; Riedenauer v. McMahon, 240 Pa. 179; Thubron v. Contracting Co., 238 Pa. 443.
The deceased was guilty of contributory negligence: Lerner v. Philadelphia, 221 Pa. 294; Hopkins v. Railroad Co., 225 Pa. 193; Camden & A. Railroad Co. v. Hoosey, 99 Pa. 492; Thane v. Traction Co., 191 Pa. 249; Rager v. Railroad Co., 229 Pa. 335; Shive v. Railway Co., 235 Pa. 256; Stewart v. Railroad Co., 146 Mass. 605.
Thomas A. Fahy, with him Walter T. Fahy and Lawrence F. McOwen, for appellee. -- The defendant was negligent in failing to equip its cars with appliances for the protection of passengers: Laing v. Colder, 8 Pa. 479; Kammerdiener v. Rayburn Twp., 233 Pa. 328; American Steamship Co. v. Landreth, 108 Pa. 264; Warren v. Pittsburgh & B. Ry. Co., 243 Pa. 15; Boston & M.R. Co. v. Stockwell, 146 Fed. Repr. 505; Grand Trunk Railway Co. v. Ives, 144 U.S. 408; Robinson v. Chicago & Alton R.R. Co., 135 Mich. 254; Dennis v. Railroad Co., 165 Pa. 624.
The deceased was not guilty of contributory negligence: Penna. R.R. Co. v. Weber, 76 Pa. 157; Weiss v. Railroad Co., 79 Pa. 387; Graham v. Penna. Co., 139 Pa. 149.
Before BROWN, MESTREZAT, POTTER, ELKIN and MOSCHZISKER, JJ.
After a careful review of this record we have concluded that the case was for the jury both as to the negligence of the defendant company and as to the contributory negligence of the deceased husband. The excursion train upon which the accident occurred was made up of nine passenger coaches and a baggage car, the latter having been fitted up by appellant for the use of excursionists as a place to get drinks and secure refreshments. The baggage car thus fitted up was placed in the center of the train for the more convenient access of passengers entering it from either end. This was a plain invitation to the passengers to make use of the baggage car as a proper place to secure refreshments. That the excursionists did make use of it for the purpose intended was known to the conductor, brakeman and other employees in charge of the train. When the defendant company thus equipped the baggage car, and provided accommodations for securing refreshments in that car, and the employees in charge of the train recognized without objection the use made of the car by the excursionists, it cannot now be heard to say that no duty rested upon it to provide a safe passageway to and from the car for passengers who availed themselves of the privileges which the defendant company evidently intended them to enjoy. In Robinson v. Railroad Co., 135 Mich. 254, the rule applicable to such a case is stated as follows: "That the railroad company having placed a dining car to the rear of the train and invited its passengers to go to and from it, and failing to provide them with a safe passage from one car to another, it could not escape liability for its failure so to do." Many other cases might be cited to the same effect. This rule which is founded upon common sense and human experience is as it ought to be of almost universal application in...
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