143 Pa. 14 | Pa. | 1891
Opinion,
If the plaintiff’s husband was killed while he was attempting
The first and one of the most important considerations upon this subject is that the plaintiff in her narr declares that her husband was attempting to get upon the defendant’s cars when the accident occurred. The language of the narr is that “ the plaintiff’s husband, Arthur Bacon, being lawfully upon the said platform at said station, as a passenger.on the cars of said defendant, and while in the act of walking upon said platform for the purpose of getting on the cars of said defendant, in the night-time, his foot sank into a hole in the said platform, thereby causing him to be thrown with force against and under the moving train of cars at the platform and station aforesaid, by means whereof the said Arthur Bacon, plaintiff’s husband, was greatly bruised, hurt, and wounded, so that afterwards, to wit, on the twelfth day of October, 1886, at the. county aforesaid, he died of said wounds.”
It is difficult to understand how there could be any more solemn assertion than this, by the plaintiff herself, that her husband received his injuries of which he died while walking upon the platform for the purpose of getting on the cars of this moving train. It is her declaration of her cause of action, upon which she asks the court and jury to act in adjudging her case. As a matter of course, it is binding upon her, not only because she asserts it, but also because, upon this subject, there is no issue between her and the defendant. The defendant also asserts, and gave evidence to prove precisely what the plaintiff alleged, to wit, that the injury was received while her husband was walking on the platform for the purpose of
The plaintiff herself testified that her husband had gone on an excursion train, which left Scranton at 8 o’clock in the morning to go to Hiawatha Island, expecting to return about the same time in the evening; also that he bought his ticket for the round trip from one of the members of the lodge. He was therefore undoubtedly intending to return upon the same excursion train upon which he left. All of the other testimony established that in the evening, on the return, the train stopped at Nicholson station, and in consequence of some defect in the pump of the engine it became necessary to attach another engine in front of the train. For this purpose, the train was backed up above the station, past a switch, over which the second engine could run on the track and then back up and be attached to the train. All this was done, and the train then started and ran on without stopping at the station. While the change was being made, a number of the passengers left the train, and stood upon the platform for some little time. Among these was the plaintiff’s husband. After the train had stood a short time at the depot, the conductor called out, “ All aboard,” twice, and many of the passengers got on. This was proved by overwhelming testimony, and was entirely uncontradicted. One of the witnesses, Lee, who was one of the excursionists, testified that the conductor said “ ‘ All aboard; wont stop when we get up to the station again,’—wanted everybody to get on. That is the way I understood it.” Then the train started to back up, and after the engine was attached, started to go on the return. The train was passing the depot at a moderate rate of speed, estimated at four or five miles an hour, when the deceased moved towards it, and attempted to get on.
The plaintiff examined two witnesses to prove what was done the moment before the accident. One of them, Seymour Pratt, said: “ My attention was called to a man that passed by me walking quite fast, middling fast, as the train was going, walking the same direction, and he turned facing the car, and caught his
According to the plaintiff’s witnesses, he was close to the train, walking fast. He turned towards the train, facing it, and reached out the moment before he fell. Lee, one of the defendant’s witnesses, was with him when the train was backing up. He was asked: “ Q. Did you get on? A. No sir; I took hold of this gentleman’s arm, and tried to walk down the track with him. Q. You walked down in the direction the train
There was other testimony of a similar character, but it is not necessary to repeat it. There was no testimony of any kind, or from any witness, tending in the least degree to contradict the evidence as to Bacon’s attempt to get on the car the moment before he fell. It proves nothing to show there was a hole in the platform. While it is not at all certain that his foot was caught in the hole, it is a matter of no consequence in determining the question of the negligence of the deceased in attempting' to get on- board of a moving train. That attempt was an established fact, first asserted by the plaintiff in her narr, then proved substantially by her own witnesses on the trial, and proved most conclusively by other and disinterested witnesses for the defandant, who were entirely uncontradicted, and the whole of the oral testimony conclusively corroborated by all the attending facts and circumstances. This whole array of concurring proof shut out every inference or conclusion but the one that the deceased was attempting to board the train while it was in motion, and the court had no alternative except to pronounce upon the undisputed state of the testimony. It is not necessary to cite authorities that it is negligence for one to attempt to get upon a train of steam railroad cars while they are in motion.
Judgment affirmed.