132 A. 796 | Pa. | 1926
At about nine o'clock on the evening of June 7, 1922, the engine on defendant's northbound passenger train, known as the Buffalo Express, when four miles south of the City of York, jumped the track, causing its wreck and the derailment of several cars attached thereto. The rear end of the train, however, was not disturbed, except by a sudden stop. Miss Harriet V. Furby, the plaintiff, enroute from Florida to Canada, was a passenger in the rear coach, a sleeping car, and had disrobed *87 for the night. Aroused by the accident, she quickly put on her stockings, shoes and a kimono and in response to a call for physicians stated she was a trained nurse, that being her profession, and then followed a passenger forward along or near the train to a place on the bank opposite the wrecked engine where the fatally injured fireman had been laid. A cursory examination satisfied her he was fatally hurt and she ordered him removed to the nearest hospital, which was done; and so was the engineer who had sustained less injuries. A public highway, extending along the west side of the defendant's right-of-way, turned and was carried over the railroad tracks by an overhead bridge, and the engine was wrecked so nearly under it that an explosion following the wreck seems to have thrown up some planks in the floor of the bridge, making an opening therein about five feet wide. After the engineer and fireman had been taken to the hospital, plaintiff returned to her car, put on her street clothes, left her suit-case, etc., in her berth, went out upon this public road and walked thereon practically the length of the train (8 cars) to the bridge, thinking, as she states, she might be of some further service, and fell through the hole and was badly hurt. To recover therefor she brought this suit and the jury found in her favor, but the court in banc entered judgment for the defendant non obstante veredicto; hence, this appeal by plaintiff.
The judgment was rightly entered. True, a common carrier must use the highest practical degree of care and diligence to protect its passengers. Moreover, an injury resulting to a passenger through any of the appliances of transportation, raises a presumption of negligence against the carrier which it must rebut to escape liability: Meier v. Pennsylvania R. R. Co.,
The relation of a passenger being eliminated, defendant was required to use only ordinary care according to the circumstances (Carr v. Fagan et al., Receivers,
The judgment is affirmed.