213 Pa. 143 | Pa. | 1906
Opinion by
Even if it be conceded that the defendant company was negligent in constructing and maintaining the poles supporting the trolley wires in too close proximity to the tracks, it does not necessarily follow that there can be a recovery in this case. The real question in dispute is whether the testimony shows such contributory negligence on the part of the deceased as will defeat plaintiff’s claim in this action. The learned trial judge in the court below directed a compulsory nonsuit, which on motion made, he refused to take off, from which rulings this appeal is taken. The deceased was standing on the running board of an open summer car at the time the accident occurred. We have frequently said that the running board of a car is not intended for the use of passengers except as a convenience in getting in and out of the car. A passenger who stands on the running board when there is room inside, or when it is reasonably practicable to go inside the car, assumes the risk of his position : Bard v. Pennsylvania Traction Co., 176 Pa. 97; Thane v. Scranton Traction Co., 191 Pa. 249; Bumbear v. United Traction Co., 198 Pa. 198. It follows therefore that a passenger who is injured while standing on the running board must show by affirmative testimony that it was not practicable for him to go inside the car before he can sustain an action for damages.
If he knew the danger, and he did, and could have avoided it by reasonable care, and of this there is no doubt, it was his duty to do so, and having failed to perform his duty in this respect, he was guilty of contributory negligence and there can be no recovery in this case.
Judgment affirmed.