Thane v. Scranton Traction Co.

• Decision Date: 01 May 1899
• Docket Number: 43
• Citation: 43 A. 136,191 Pa. 249
• Parties: Edward Thane, Appellant, v. The Scranton Traction Company, Appellant
• Court: Pennsylvania Supreme Court

43 A. 136

191 Pa. 249

Edward Thane, Appellant, v. The Scranton Traction Company, Appellant

No. 43

Supreme Court of Pennsylvania

May 1, 1899

Argued February 24, 1899

Appeal, No. 43, Jan. T., 1899, by plaintiff, from judgment of Superior Court, Jan. T., 1898, No. 26, reversing judgment of C.P. Lackawanna Co., Sept. T., 1895, No. 930, on verdict for plaintiff. Affirmed.

Appeal from Superior Court.

The case was reported in 8 Pa.Super. 446, where the facts are sufficiently stated in the following excerpts from the opinion of WILLIAM W. PORTER, J., as follows:

The plaintiff, a man of fifty-six years, was a passenger on a closed car of the defendant company. He admits that he took a position on the back platform, with knowledge that there were vacant seats within the car. He stood holding to a metal rod which protected the back window when a collision occurred. The effect of the collision was to throw the plaintiff first forwards and then backwards, causing him to strike the iron dashboard with his back and to fall over the dashboard into the street, whereby he claims to have sustained injuries to his back and to his bladder. The case thus presents a voluntary occupancy of the platform of an electric car by a passenger having knowledge of the vacancy of seats within the car.

The defendant company offered no testimony to rebut the presumption of negligence on its part, but claims that the court below should have instructed the jury for the defendant on the ground of the plaintiff's contributory negligence.

The decision of this case involves two questions. First, was the plaintiff negligent in remaining on the platform, under the circumstances? and second, if so, did his negligence contribute to his injury? Both of these questions must be determined affirmatively in order to sustain the position taken by the defendant.

* * *

The electric car and the horse car have points of similarity. They operate upon the surface of streets and carry passengers short distances for low fares. Here their likeness ceases. The electric motor has brought upon the crowded city streets as well as upon many of the country highways, cars and trains with a speed and size approaching those of the steam road subject in their passage to grade crossings of other cars at well nigh every street corner, and of vehicles and foot passengers at every foot of their course and on every hand running at short intervals of time and space making collision peculiarly likely; subject to frequent and abrupt starting, stopping and turning and to many switches with possibility of derailment. All of these things make transportation upon the electric car quite as perilous as upon steam roads and leave no room for comparison with the slow, deliberate and easily controlled transportation by horses. Under these circumstances, is the passenger who rides upon the platform of the trolley to be held to the rule applicable to steam roads or to the horse car?

* * *

Did the plaintiff's position on the platform of the car contribute to his injury? He testifies, as do his physicians, that his injury was caused by striking his back upon the platform railing. The character and cause of the physical injury were thus determined by the plaintiff's own testimony and that of his witnesses to be due to his position on the platform. Had he been within the car it cannot be assumed that he would have been injured in the same manner and to the same extent, or that he would have been injured at all. When the plaintiff boarded the car he was accompanied by a friend who took a seat within the car and was uninjured by the collision. Again, the plaintiff's evidence is that the passengers inside the car were "shook up and scared, and some hurt," but McAvoy, the plaintiff's friend, who was in the car and had the better opportunity of knowing what befell the other passengers, says: "The people that was inside, when they seen them coming, they jumped up and run to the back of the car, it shook them up pretty well in there, some of them was thrown down I think, I can't say for sure." On all the testimony it seems plain that the peculiar injury complained of by the plaintiff was contributed to, if not wholly caused by, his presence on the platform, and thus convicts him of such contributory negligence as is a bar to recovery.

Error assigned was the judgment of the Superior Court.

Judgment affirmed.

John P. Kelly, with him Joseph O'Brien, for appellant. -- Even if the plaintiff was negligent in riding upon the platform, instead of taking a seat inside, it cannot be said that such negligence contributed in any way to the injury: 13th & 15th St. Pass. Ry. Co. v. Boudrou, 92 Pa. 475; Furnish v. Missouri Pacific Ry. Co., 102 Mo. 438; Wagner v. Ry. Co., 97 Mo. 512; McGee v. Ry. Co., 92 Mo. 208; Muehlhausen v. R.R. Co., 91 Mo. 344; Burns v. Ry. Co., 50 Mo. 139; Huelsenkamp v. R.R., 34 Mo. 45; S.C. 37 Mo. 537; Ashbrook v. Ry. Co., 18 Mo.App. 290; Gerstle v. Ry. Co., 23 Mo.App. 361; Smotherman v. Ry. Co., 29 Mo.App. 265; Tuley v. R.R. Co., 41 Mo.App. 432; R.R. Co. v. Bisch, 41 Am. & Eng. R.R. Cases, 89; Dewire v. R.R. Co., 37 Am. & Eng. R.R. Cases, 57; Clark v. R.R. Co., 36 N.Y. 137; Fleck v. Ry. Co., 134 Mass. 480; Turnpike Road Co. v. Cason, 20 A. 113; Beach, Con. Neg. p. 303, et seq.; Downey v. Hendric, 46 Mich. 498; Woolery v. Ry. Co., 107 Ind. 381; Maguire v. Middlesex R.R. Co., 115 Mass. 239; Bard v. Traction Co., 176 Pa. 99.

Everett Warren, with him Edward N. Willard and Henry A. Knapp, for appellee, cited Pass. Ry. Co. v. Boudrou, 92 Pa. 475; Germantown Pass. Ry. Co. v. Walling, 97 Pa. 55; Reber v. Pittsburg, etc., Traction Co., 179 Pa. 339; Aikin v. R.R. Co., 142 Pa. 47; Mann v. Phila. Traction Co., 175 Pa. 122 Bard v. Traction Co., 176 Pa. 97; Camden & Atlantic R.R. Co. v. Hoosey, 99 Pa. 492; Lynn v. Southern Pacific R.R. Co., 103 California, 7; Ward v. Central Park, etc., R.R. Co., 33 N.Y. Superior Ct. 392; Ashbrook v. Frederick Avenue Ry. Co., 18 Mo.App. 290; Clark v. Eighth Ave. R.R. Co., 36 N.Y. 135; Shearman & Redfield on Negligence, sec. 523; Winter v. Ry. Co., 153 Pa. 26.

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

OPINION

MR. JUSTICE MITCHELL:

The proper and assigned place for passengers is inside the car. Unless he shows some valid reason to excuse him, a passenger is bound to put himself in the appointed place, and if he does not, he takes the risk of his location elsewhere. This is the settled rule of all our cases. In Germantown Pass Ry. Co. v. Walling, 97 Pa. 55, it was said by the trial judge...