Warren v. Pittsburgh & Butler Railway Co.

• Decision Date: 05 January 1914
• Docket Number: 224
• Citation: 243 Pa. 15,89 A. 828
• Parties: Warren v. Pittsburgh & Butler Railway Company, Appellant
• Court: Pennsylvania Supreme Court

89 A. 828

243 Pa. 15

Warren v. Pittsburgh & Butler Railway Company, Appellant

No. 224

Supreme Court of Pennsylvania

January 5, 1914

Argued October 16, 1913

Appeal, No. 224, Oct. T., 1913, by defendant, from judgment of C.P. Butler Co., Sept. T., 1913, No. 66, on verdict for plaintiff in case of Mary E. Warren v. Pittsburgh & Butler Street Railway Company. Affirmed.

Trespass for death of plaintiff's husband. Before GALBREATH, P.J.

The opinion of the Supreme Court states the case.

Verdict for plaintiff for $5,000, and judgment thereon. Defendant appealed.

Error assigned, among others, was the refusal of the defendant's motion for judgment n.o.v.

The judgment is affirmed.

Charles F. Hosford, for appellant.

J. E Marshall, with him Thomas W. Watson and John R. Henninger for appellee. -- It is the duty of carriers' servants when aware of the intoxication of a passenger to give him that degree of attention which consideration for his safety demands beyond that ordinarily bestowed on passengers: Clark v. Harrisburg Traction Co., 20 Pa.Super. 76; Tilburg v. R.R. Co., 217 Pa. 618; Hudson v. Lynn & Boston R.R. Co., 178 Mass. 64; Donovan v. Greenfield and T.F. Street Ry. Co., 183 Fed. Repr. 526; Sullivan v. Seattle Elec. Co., 44 Wash. 53; Mobile, Jackson & Kansas City R.R. Co. v. Jackson, 92 Miss. 517; Price v. St. Louis, Iron Mountain & Southern Ry., 75 Ark. 479; Wheeler v. Grand Trunk Ry. Co., 70 N.H. 607. The questions whether plaintiff was ejected from the car, whether he was ejected at a dangerous place, and whether the result was the probable and proximate consequences thereof, were all questions of fact and were properly left to the jury: Tillburg v. R.R. Co., 217 Pa. 648; Clark v. Harrisburg Traction Co., 20 Pa.Super. 76; Donovan v. Greenfield & T.F. Street Ry. Co., 183 Fed. Repr. 526; Sullivan v. Seattle Elec. Co., 44 Wash. 53.

Before FELL, C.J., BROWN, MESTREZAT, ELKIN and MOSCHZISKER, JJ.

OPINION

MR. CHIEF JUSTICE FELL

This action was to recover for the death of the plaintiff's husband, which was caused by his being struck by a car of the defendant, in front of which he staggered while intoxicated. He became a passenger on one of the defendant's cars in Pittsburgh to go to his home several miles distant in the country. He paid his first fare, took a seat in the front part of the car and at that time he showed little if any indication of intoxication. When later he was asked for the second fare he was in a drunken stupor and when aroused from it, he refused to pay. Some minutes later a second demand for fare was made and he again refused and declined or was unable to name his destination. The conductor then ordered him to leave the car, and in obedience to this order or because of force used by the motorman, he arose from his seat and walked to the back platform and stepped down to the roadway. While on the platform or immediately after stepping from it, he was asked by the motorman to pay his fare and to reenter the car. He refused to pay the conductor but handed a dollar to the motorman, who gave it to the conductor, who offered the deceased the change due him which he refused to take. He was then very much intoxicated, unable to talk coherently or to walk without staggering and was stupid and sullen. He was left standing on a road of a clear width of only thirteen feet and on one side of which was the defendant's track. Across the track from this place there was a way station with a small platform and storm shed but with no one in attendance. He lingered around the station for more than an hour and then attempted to walk along the road in the direction of his home. When several hundred feet from the station he staggered diagonally across the road and fell in front of an approaching car.

The...