255 Pa. 310 | Pa. | 1917
Opinion by
This is an action to recover damages for personal injuries which the plaintiff alleges he sustained while he was a passenger on one of the defendant company’s cars in the City of Johnstown. The court granted a nonsuit, and the plaintiff appealed.
The defendant company operates a trolley line on Bedford street, extending northwest and southeast through the City of Johnstown, which is intersected by Main street and by the tracks of the Baltimore & Ohio Railroad. It appears from the testimony that on the evening of June 5, 1911, the plaintiff got on the rear platform of defendant’s car while it was proceeding from Main street, the last regular stopping place of the car, towards the B. & O. Railroad tracks, where it collided with a moving freight train, and the plaintiff was thrown to the floor of the platform and sustained severe injuries. The plaintiff testified: “I boarded this street car, and I just had gotten up on the rear end of this Horner street summer car, had hold of the handhold with my right hand and had my umbrella in my left hand. I heard some one holler. I immediately glanced out to the side and I saw this other car (railroad) coming back. It hit the street car and I was thrown forward.” At the time the plaintiff boarded the car the conductor was standing on the front end of the running board. At the conclusion of the plaintiff’s evidence, the trial judge granted a nonsuit on the ground that the plaintiff was not a pas'
We do not agree with the learned judge that, under the evidence in the case, he could declare, as a matter of law, that the plaintiff was not a passenger on the defendant’s car at the time he was injured and the defendant owed him no duty as such. In determining the defendant’s right to the nonsuit, the plaintiff, on this appeal, is entitled to the benefit of every presumption and inference which can arise in his favor under the evidence. The testimony would justify a jury, in finding that the plaintiff, at the time of the collision, was on the rear platform of the car, had hold of one of the horizontal hand rails which extend from the steps to the door, and was proceeding to enter the car. It is, therefore, claimed by the plaintiff that the case is not within the class of cases where the plaintiff is injured while attempting to get on a moving car. Plaintiff’s counsel concedes that his client was negligent in boarding the car while it was in motion. He contends, however, that at the time of the collision the plaintiff was safely on the car, and that his negligence in boarding the moving car was not the cause of his injuries. Plaintiff, therefore, claims that at the time of the accident he was a passenger on the defendant’s car and entitled to he protected as such. The defendant contends that a passenger’s right to recover for injuries sustained by the carrier’s negligence is based upon the contractual relationship of carrier and passenger, that under the facts in this case the plaintiff was not a passenger when the collision occurred and defendant had not assumed any obligation to carry him as a passenger.
We have held in many cases that a passenger, in the legal sense of the term, is one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, as to the payment of fare; or that which is accepted as an equivalent thereof. Owing to the nature of the business, the contractual relation of a carrier
We are not favorably impressed with the contention of the defendant company that under the circumstances disclosed by the evidence the plaintiff was not a passenger because he was not seen or recognized by the motorman or conductor prior to the accident. If this be a controlling test as to whether or not the relation of carrier and passenger exists, a large part of the patrons of the street car service in the congested portions of the cities will be deprived of a remedy for injuries resulting from the negligent acts of the servants of trolley companies. It is common knowledge that passengers, especially in the earlier style of street cars, frequently enter the cars without their presence being known to the conductor until after, the car is in motion and he collects
Whether one is a passenger on a carrier and entitled to protection as such is usually a mixed question of law and fact and,should be submitted with proper instructions to the jury. In 2 Hutchinson on Carriers, Sec. 997, the learned author says: “Whether either or both of the elements (in the legal definition of a passenger) exist is ordinarily a question for the jury. The acceptance of the carrier need not be direct or express, but may be and usually is implied from the surrounding circumstances.”
It was error, we think, to withdraw the present case from the jury, and to rule it as a matter of law. The recent case of Geiger v. Pittsburgh Railways Co., 217 Pa. 287, was a much stronger case for the defendant, and we sustained the trial court in submitting it to the jury.
Judgment reversed with a procedendo.