251 Pa. 505 | Pa. | 1916
Opinion by
This is an action to recover damages for injuries sustained by the plaintiff by being thrown from the rear platform of the defendant’s trolley car. There was a verdict and judgment in favor of the plaintiff and the defendant has appealed.
The plaintiff for some time prior to November 29,1911, had been in the employ of the defendant company as a track foreman. As part of the compensation for his services, he testified that he was to be furnished free transportation to and from his work and wherever he wished to go. On the evening of that day he boarded one of defendant’s cars at its station at the B. & O. bridge near Hays Borough for the purpose, as he alleges, of going to his home near Glenwood. He took a position on the rear platform of the car because, as he says, the inside of the car was so crowded with passengers that he could not enter it. A short distance from the station at which the plaintiff boarded the car, it made its first stop for receiving and discharging passengers. It again started and when running at a high rate of speed entered a. curve and the plaintiff was thrown from the platform
The defense in the court below was that the plaintiff was a fellow servant of the motorman who ran the car and for whose negligence the defendant was not responsible, and that the plaintiff was guilty of contributory negligence in riding on the platform when there was available room on the inside of the car. Both these questions were submitted to the jury in an elaborate charge which was really more favorable to defendant company on the law of the case than it had a right to demand. The court directed the attention of the jury to the testimony of all the witnesses bearing on the questions at issue, and the facts have been found against the defendant. The court overruled the defendant’s motion for judgment non obstante veredicto, and judgment was entered on the verdict in favor of the plaintiff.
The appellant raises two questions on this appeal: (a) The plaintiff was a fellow servant of the motorman at the time of the accident for whose negligence the defendant was not responsible; and (b) the plaintiff was guilty of contributory negligence in remaining on the platform of the car when there was available room inside.
If, when the plaintiff was traveling on the defendant’s car and the accident occurred, he was engaged in the defendant’s service as an employee and was thus a fellow servant of the motorman he could not recover under the instructions properly given by the court to the jury. If, however, he was traveling as a passenger and entitled to the rights and protection of a passenger at the time the accident occurred, the negligence of the motorman would not bar his right to recovery. The defendant contends that from the plaintiff’s own testimony it appears that under his contract he was to wort ten hours a day and his quitting time was five-thirty in the afternoon, that the accident occurred before the time for him to
We have examined the plaintiff’s testimony with care and we do not think it was sufficient to justify the court in declaring as a matter of law that at the time of the accident the plaintiff was engaged in the company’s service and had not completed his day’s work. The plaintiff himself testified that, under his contract with the defendant, there was no special time for him to commence or quit work, that ten hours were considered a day’s work, that if he began early he could quit early, that on the day of the accident he began work about a quarter before seven o’clock and in the evening, the work at that particular point having been finished, he directed his men to put up their tools and go home, and that they had finished their work and were going home at the time the accident occurred. The plaintiff had a pick in his possession when he was on the car and the accident occurred. He testified as follows: “Q. — Had you finished your work for that day? A. — Yes, sir, finished work, and walked up to where the tool box was, and I got on the car to go home. Q. — Where were you bound for when you had this pick ? A. — I was going home.” There was other evidence in the case tending to sustain the plaintiff’s contention that he and the gang of men under his control at this place had finished their work, had quit for the day, and had all left for their homes.
The plaintiff testified, and he was not contradicted,
The proper place for a passenger on a street car is on the inside and not on the outside or platform. He should, therefore, on boarding the car enter the inside and remain there until he reaches his destination. Reason and common prudence alike require that a passenger on a trolley car observe this rule for Ms own protection and safety. A street car company is held to the highest degree of care in transporting a passenger and it is reasonable that the latter should occupy the place prepared
The testimony introduced by the plaintiff clearly required the court to submit to the jury whether there was available or unoccupied space in the body of the car, and whether it was reasonably practicable for the plaintiff to enter the car. The plaintiff himself testified that when he stepped on the platform he could not get quite to the door, that the platform was crowded and the car was full, that the inside of the car around the rear door was so crowded that it was impossible to see forward to the front of the car, and that he then took a position on the platform between the controller and the side of the car. Mr. Benn, a witness for the plaintiff, testified that there was a congestion at the rear door, and that “I believe you could have crowded in if you had felt so inclined; if you had felt like it you might have pushed your way in.” Mr. Kent, another witness for the plaintiff, testified that there were eight people on the rear platform, that the inside of the car was filled, that the conductor worked himself sideways into the car, and that a passénger could possibly have forced his way in.
This and other testimony in the Case was amply sufficient to warrant the learned trial judge in submitting to the jury the question whether it was reasonably practicable for the plaintiff to enter the body of the car, and whether he was justified, owing to the crowded condition of the car, in remaining on the platform. The plaintiff’s negligence depended upon the answer to this question, and the jury have, under sufficient evidence, determined it in his favor.
Judgment affirmed.