39 Pa. Super. 198 | Pa. Super. Ct. | 1909
Opinion by
The plaintiff brought this action against the defendant company to recover damages for the death of her daughter, which resulted from injuries received while upon the premises of the defendant at Langhorne, a station upon the line of the company between Philadelphia and New York. The company, at the time of the accident, operated at this locality two tracks and maintained a small station house, inclosed at the sides but open in front, on the south side of the south track, for east-bound passengers, and a platform upon the same side of that track extending from the station house eastward to a public highway named Bellevue Avenue. The main station house was on the
The burden was upon the plaintiff to prove the facts upon which she would become entitled to recover, or to .prove facts and circumstances from which a jury might be permitted to infer the existence of the facts upon which that right depended. If Miss Ambler was a mere licensee or loiterer, using the station house of the defendant company as a waiting room for a street railway car, operated by a company with which this defendant had no connection, then the plaintiff was not entitled to recover. The plaintiff was only entitled to recover in case her daughter was a passenger of this defendant company and stood in that relation at the time the injury was sustained.
The plaintiff in her statement averred that her daughter “was lawfully upon the platform of said station,” but did not aver that she was or had been a passenger. We have carefully considered the evidence and are not satisfied that it contains anything from which the jury ought to have been permitted to infer that Miss Ambler had been a passenger upon any train of the defendant company. It is true that a number of witnesses spoke of Miss Ambler’s arriving “on the next train” or “by a later train,” but reading the entire evidence of each of such witnesses clearly establishes that not one of them saw Miss Ambler that evening until she appeared at the west-bound station house on the north side of the railroad, or upon the north-side platform, immediately in front of that station house.
Let it be assumed, however, that there was sufficient evidence
The answer to this question is to be found in the opinion of Mr. Justice Elkin, who spoke for the Supreme Court, in Powell v. Philadelphia & Reading Railway Company, 220 Pa. 638. The fact which distinguishes that case from this one is, that in the Powell case there was evidence that the plaintiff had left the station on the south side of the track and gone to that on the north side of the track to meet her friend or await his arrival in order to accompany her to her place of destination. There was in the present case no such evidence, and the following extract from the opinion has, therefore, direct application. “In this connection we quite agree with the suggestion made by the learned counsel for appellant that it was no part of the duty of the railroad company to furnish a waiting room for the intending passengers of a street railway company with which the railroad company had no connection, and if it clearly appeared that the only purpose of the plaintiff after alighting from the train at the south side of the tracks was to go to the station on the north side, for the purpose of awaiting the arrival of a street railway car on which she intended to become a passenger, there could be no recovery because the relation of carrier and passenger would, under these circumstances, have ceased to exist before the injury occurred.” Applying this statement of the law to the facts on the present case, we must hold that Miss Ambler, at the time of the accident, had ceased to be a passenger and had become a mere licensee. This being the relation in which the deceased stood to the defendant company, the latter owed her no positive duty the mere neglect of which would render it liable for damages: Gillis v. Pennsylvania Railroad Company, 59 Pa. 129; Bal
The judgment is reversed and judgment is now entered in favor of the defendant non obstante veredicto.
Henderson, J., dissents.