Tobin v. Pennsylvania R. Co.

Citation100 F.2d 435,69 App. DC 262
Decision Date24 October 1938
Docket NumberNo. 7028.,7028.
PartiesTOBIN v. PENNSYLVANIA R. CO.
CourtU.S. Court of Appeals — District of Columbia Circuit

Rossa F. Downing, Thomas F. Gowen, and Hilda M. Jackson, all of Washington, D. C., for appellant.

F. D. McKenney, J. S. Flannery, G. B. Craighill, and R. A. Bogley, all of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.

MILLER, Associate Justice.

Annie L. Tobin, appellant herein, declared against the Pennsylvania Railroad Company for an injury suffered by stepping into a space between the station platform and the platform of a car on a train operated by appellee out of the Thirtieth Street Pennsylvania Station in Philadelphia. The theory of her case, as set out in two counts, is that appellee negligently constructed and maintained its station by permitting to exist a space which was unusual and unnecessary, and that appellee was guilty of negligence in creating and maintaining a dangerous condition without providing a "guard, sign, warning or suggestion of any kind" that such condition existed. The lower court directed a verdict for appellee upon the conclusion of appellant's evidence, and this appeal is from the judgment on the directed verdict.

The law applicable to the case, so far as it concerns the standard of conduct required of the parties, is the law of the place of injury,1 hence, the law of Pennsylvania; but the application of the standard must be made according to the law of the forum for that is a procedural matter.2 Consequently, the question whether there is sufficient evidence to take the case to the jury must be determined according to the law of the District of Columbia.3

The rule applicable in the District of Columbia on a motion for a directed verdict in an action founded upon negligence, is that the evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury; if, on the other hand, no reasonable man could reach a verdict in favor of the plaintiff, the motion should be granted; a mere scintilla of evidence is not sufficient; the question is not whether there is any evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party upon whom the onus of proof is imposed; the burden being upon the plaintiff to establish the negligence and injury alleged, if the evidence fails adequately to support either element, the motion should be granted.4

The evidence, most favorably construed in favor of appellant, was that she was a woman sixty-four years of age, in good health prior to the accident, weighing in the neighborhood of 175 pounds; she had ridden on a train only once before in her life and was unfamiliar with the Thirtieth Street Station of appellee railroad company in Philadelphia, where the accident occurred; she was much excited by the experience; she was accompanied on this occasion by four companions, two of whom preceded her onto the train; the floor of the platform station was on a level with the platform of the train, permitting passengers to step directly from the floor of the station to the floor of the car vestibule; the station was crowded at the time of the accident, the Democratic National Convention then being in session at Philadelphia; appellant's view of the space between the station platform and the vestibule platform may have been obstructed by those who were preceding her onto the train; the space between the station platform and the train was from five to twelve inches in width; it was large enough to permit her foot to go into the aperture, though she was wearing a shoe ten inches in length, and it was large enough so that she fell clear to her hip, her other leg being outstretched on the station platform and the upper part of her body thrust forward into the vestibule of the car over her suitcase; she was seriously injured, probably permanently, as a result of the accident; the scene of the accident was in a subway, three flights of stairs down from the street level; there was no daylight, the only illumination being from a few electric lights near the ceiling; there were no lights along the place where the passengers entered the coaches; there was only one representative of the railroad company near at the time of the accident and he did not see it happen; several minutes elapsed before the representative of the railroad company saw appellant in the hole and helped her out; no warning of any kind was given by any representative of the railroad company. It should be noted also as regards the matter of warning that the following allegation appears in appellee's plea filed by it as defendant in the lower court:

". . . defendant admits that there was no guard or sign calling attention to the space between said floor and platform, but denies that there was any duty on its part to provide a guard, sign, warning or suggestion with respect thereto and further says that the attention of plaintiff and of other passengers was directed to the existence of such space by defendant's employees admonishing them to watch their step; . . ."

This affirmative allegation suggests a recognition by appellee of a dangerous condition, and voluntary assumption of a duty to protect its passengers therefrom. The testimony of appellant's witnesses challenged the allegation and the only evidence upon the point contradicted it flatly. See Altemus v. Talmadge, 61 App.D.C. 148, 151, 58 F.2d 874, 877, certiorari denied, 287 U. S. 614, 53 S.Ct. 16, 77 L.Ed. 533.

The standard of care applicable in cases arising out of alleged negligence of railroad companies has been stated by the Supreme Court of Pennsylvania in Palmer v. Warren Street Ry. Co., 206 Pa. 574, 581, 56 A. 49, 51, 52, 63 L.R.A. 507, as follows:

"* * * More is required of a common carrier than mere reasonable precaution against injuries to passengers and care that its cars and appliances are to be measured by those `in known general use.' While the law does not require the utmost degree of care which the human mind is capable of imagining, it does require that the highest degree of practical care and diligence shall be observed that is consistent with the mode of transportation adopted; and cars and appliances are to be measured by those which have proved by experience to be the most efficacious in known use in the same business. The rule upon this subject, as laid down in Meier v. Pennsylvania R. Co., supra 64 Pa. 225, 3 Am.Rep. 581, and which should have been followed by the court in answering the point, is: `The utmost care and vigilance is required on the part of the carrier. This rule does not require the utmost degree of care which the human mind is capable of imagining; but it does require that the highest degree of practical care and diligence should be adopted that is consistent with the mode of transportation adopted. Railway passenger carriers are bound to use all reasonable precautions against injury of passengers; and these precautions are to be measured by those in known use in the same business, which have been proved by experience to be efficacious. The company is bound to use the best precautions in known practical use. That is the rule; the best precautions in known practical use to secure the safety of the passengers; but not every possible preventive which the highest scientific skill might suggest.'"

The rule as applied in the District of Columbia has been stated by this court in a number of cases, of which the following are examples: Capital Traction Co. v. Copland, 47 App.D.C. 152, 159:

"* * * Common carriers of passengers, like the defendant, are bound to exercise extraordinary vigilance added by the highest skill for the purpose of protecting their passengers against injury resulting from defects in ways or instrumentalities used by the carriers. (Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141, 10 Am. Neg.Cas. 593.) They are bound to anticipate what passengers would naturally do under circumstances such as those in which the plaintiff acted."

Great Falls & Old Dominion R. Co. v. Hill, 34 App.D.C. 304, 312, certiorari denied 216 U.S. 619, 30 S.Ct. 574, 54 L.Ed. 640:

"* * * It is the duty of a carrier, as stated in another instruction given at the request of plaintiff, to exercise the highest practicable degree of care for the safety of its passengers, not only in the matter of carriage, but also in respect of means for getting on and off...

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    ...therefrom. Restatement, Conflict of Laws, §§ 380(1); 383, comment b; 595 and comment b; Tobin v. Pennsylvania R. Co., 69 App.D.C. 262, 100 F.2d 435, 436. The law of the forum also controls all questions as to burden of proof and whether there is sufficient evidence of negligence and proxima......
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