Boulfrois v. United Traction Co.

210 Pa. 263 | Pa. | 1904

Lead Opinion

Opinion by

Mb. Justice Dean,

We desire it to be distinctly understood that in Powelson, v. United Traction Co., 204 Pa. 474 ; Hunterson v. Traction Co., 205 Pa. 568 and Bainbridge v. Traction Co., 206 Pa. 71, we had no intention of relaxing the well-established rule, “ That to get on or off a moving car, whether propelled by steam or electricity, is negligence per se in him who attempts it.” To this rule, as in all rules, we further said there are some rare exceptions, as in Johnson v. West Chester, etc., Railroad Co., 70 Pa. 357, and Penna. Railroad Co. v. Peters, 116 Pa. 206, and a very few others, which because of their peculiar facts are exceptional. From the whole evidence in this case, it did not necessarily and certainly follow that Armand Boulfrois, Jr., the injured person, was either negligent or not negligent. If the car had not stopped when he attempted to get on, and by that attempt he was injured, he was negligent and cannot recover ; if it either had, or had not stopped and he was safely on, then if the conductor, by suddenly and recklessly turning on the power gave the car a jerk which threw the boy off, it was the conductor’s negligence that caused the injury and he can recover. If the boy’s attempt to get on was not complete, if he was still engaged in the attempt, when the car was jerked, the inceptional act of negligence when he stepped from the ground onto a moving car, still continued and he cannot recover. If he was negligent in getting on, as from his own testimony he was, then when safely on before he had time to get seated, the conductor by suddenly turning on the power jerked him off, it was the conductor’s negligence which caused the injury and defendant is answerable.

Was the act of getting on complete, when the jerk threw him off, if it did throw him off ? If it was complete then the company’s negligence caused the accident, just as clearly as if some other passenger, on his feet looking for a seat, was thrown violently to the floor or thrown off by a sudden jerk of the car by a reckless conductor. The boy’s good luck in reaching the running board in safety did not condone the negligent act of getting on, if he was not yet safely on when thrown off. We have tried to make our meaning plain; if we have failed it is either because our obtuseness of perception or poverty of language fails to make plain to others what is plain to us. The learned counsel for appellee seems to have misapprehended our ruling in the Powelson and other cases cited, for in his argument he uses this language :

“We still understand this court to adhere to the well-established rule that whenever the standard of duty shifts, not according to any fixed rule but with the facts and circumstances developed at the trial, the question of negligence cannot be determined by the court but must be submitted to the jury.”

That is not the law applicable to this evidence; as applicable to the facts here the law is correctly embodied in defendant’s third written prayer for instruction at the trial as follows :

“ Third. The evidence showing that Armand Boulfrois, Jr., being upwards of fourteen years of age, attempted to board a street car while in motion, he is prima facie guilty of contributory negligence, and the burden of proof is upon him to establish by the weight of the evidence that he successfully boarded the ear, and if the jury find from all the evidence in the case, that the said Armand Boulfrois, Jr., sustained injuries in the attempt to board the ear while in motion, by reason of the motion of the car, the verdict of the jury should be in favor of defendant. Answer: Affirmed, with a qualification.”

The substance of the qualification appears in the general charge thus: “ This point is affirmed unless you find as I have stated, that the motion of the car was such as to induce the plaintiff to believe that it was about to stop, or at least the motion was such, that he or any reasonable person would be induced to believe that he could get on with safety.” The court then went on and elaborated further this qualification, but in no manner detracted from its significance as we have quoted it. It was, in substance, a denial of the point, and in effect adopting as the law the argument of appellees’ counsel already quoted that the standard of duty, as to one who gets on or off a moving car shifts, not according to any fixed rule, but with the facts and circumstances. To this we say that as to one who gets on or off a moving car and is injured by so doing the standard does not shift; he is negligent per se. But if he escaped injury by that act of his own, yet subsequently, no matter how short the time, from his own first act, by the distinct act of negligence on the part of the conductor he was injured, he can recover. The evidence showed without question that plaintiff attempted to get on a moving car; can it be reasonably said, in view of all the testimony, that he was safely on when he was jerked off by the act of the conductor ?

It was error to affirm with a qualification which neutralized it appellant’s third point. This is the only error requiring notice. The judgment is reversed and a venire facias de novo is awarded.

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Dissenting Opinion

Me. Justice Mestbezat,

dissenting:

For the reasons stated in the dissenting opinion in Hunterson v. Traction Co., 205 Pa. 568, I cannot concur with the majority of the court in holding “ that to get on or off a moving car, whether propelled by steam or electricity, is negligence per se in him who attempts it,” and, therefore, I dissent from the judgment reversing the court below.