West Phila. Pass. R'Way Co. v. Gallagher

• Decision Date: 16 March 1885
• Citation: 108 Pa. 524
• Parties: West Philadelphia Passenger Railway Company <I>versus</I> Gallagher.
• Court: Pennsylvania Supreme Court

108 Pa. 524

West Philadelphia Passenger Railway Company versus Gallagher.

Supreme Court of Pennsylvania.

January 27, 1885.

March 16, 1885.

January 27th, 1885.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term, 1884, No. 48.

COPYRIGHT MATERIAL OMITTED

Rufus E. Shapley, for plaintiff in error.—It is not negligence per se for a street railway to use cars with open front platforms: Hestonville Pass. Ry. Co. v. Connell, 7 Norris, 520; Hestonville Pass. Ry. Co. v. Kelley, 6 Outerbridge, 115.

The courts have never gone so far as to say that as matter of law, it is the duty of a railroad company to put gates or screens upon the front platforms of cars, yet the language of the court below was tantamount to such a ruling.

L. C. Cleemann and Pierce Archer, for the defendant in error.—In determining the question of negligence, while the absence of fenders or gates to the front platforms of cars is not negligence as matter of law, yet the fact that it was not so inclosed is a matter proper to be considered, in connection with the other facts of the case, in determining whether the railroad company was guilty of negligence in not having them: Phila. City Pass. Ry. Co. v. Hassard, 25 P. F. S., 367; Crissey v. Hestonville Ry. Co., Id. 83; Pitts, All. and Manch. P. Ry. Co. v. Caldwell, 24 Id., 421; Sheridan v. Brooklyn and New Town R. R. Co., 36 N. Y., 39; Clark v. R. R., Id., 135; Meesel v. Lynn & Boston R. R. Co., 8 Allen (Mass.) Rep., 234; Germ. Pass. Ry. Co. v. Walling, 1 Out., 55. Where the measure of duty varies, requiring a higher degree of care in some cases than others, and where both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence: McCully v. Clarke, 4 Wright, 406; Penna. Canal Co. v. Bentley, 16 P. F. S., 30; West Chester and Phila. R. R. Co. v. McElwee, 17 Id., 311. A child is not held to the same degree of care as an adult: Rauch v. Lloyd, 7 Casey, 358; Penna. R. R. Co. v. Kelly, Id., 372; Smith v. O'Connor, 12 Wright, 218; Oakland R. W. Co. v. Fielding, Id., 320; Glassey v. Pass. Ry. Co., 7 P. F. S., 172; Kay v. Penna. R. R. Co., 15 Id., 269.

Mr. Justice TRUNKEY delivered the opinion of the Court, March 16th, 1885.

There is little conflict of testimony respecting the number of passengers on the car at the time the plaintiff was hurt. The person who acted as conductor says there were between forty-five and fifty, eight or nine of whom were on the front platform. Passengers, whether called by the plaintiff or defendant, agree that the car was crowded, and that more might have got on — the conductor thinks he could have shoved on seventy and then it would have been pretty well packed. He also testifies that eight or ten boys were on the car, and that he saw none of them standing on the step of the front platform, nor on the platform itself except in the door. While the car ran from Forty-first street to Sixty-second, the plaintiff stood on one of the front steps, and either the crowd or something else kept him from the conductor's view. Had the conductor seen him he might have considered it his duty, under the rules of the company, to have placed him in a position of greater safety. It appears that the rocking motion of the car was increased by the platforms being loaded with passengers; also that the car at the time of the accident was running down grade, quite as fast as the usual rate of speed when the passengers could all be seated. One of the witnesses who had been a driver on that road, says the rocking was not unusual with a loaded car, but was unusual with a car not so heavily loaded. The front platform was without gates or fenders. The plaintiff was nearly thirteen years and two months old.

The fact that the front platform was not enclosed with a screen or fender is a matter proper to be considered with other facts in the case, in determining whether or not the defendant was guilty of negligence in allowing the front door to remain open, and the front platform to be crowded with passengers, some of whom were children. It was the duty of the defendant to exercise reasonable care and vigilance to carry the plaintiff safely. If on account of the plaintiff's age and inexperience, he was incapable of taking proper care of himself, the defendant was bound to exercise the highest care and vigilance necessary and proper to secure his safety: Phil. City Pass. Railway Co. v. Hassard, 75 Pa. St., 367. These principles apply to the duty of passenger railway companies in relation to passengers, and are not militated by rulings in cases where children got on or attempted to get on the front platforms, under circumstances which, had they been of mature age, would have shown them both trespassing and negligent, and which showed no negligence on the part of the companies.

There is no absolute rule as to what constitutes negligence. Where a higher degree of care is demanded under some circumstances than under others, when the standard shifts with the circumstances of the case, when both the duty and the extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence and whether it has been proven: Cr...