234 Pa. 545 | Pa. | 1912
Opinion by
This was an action of trespass brought by Adam
The trial judge refused binding instructions for the defendant, and submitted the case to the jury who found a verdict for the plaintiff. The defendant has appealed, and in the fourth assignment of error, counsel have alleged the inadequacy of the charge, in that the jury were instructed that if they found the decedent was a passenger or an intending passenger, and did not go to the
It is very difficult, under the evidence in this case, to reconcile the verdict of the jury in favor of the plaintiff, with any proper understanding by the jury of what was required to constitute a passenger. If Geiger was hurt while forcing his way into the car from the wrong side, and at an unusual and improper place, he should not have been properly regarded as a passenger at the time, and the jury should have been plainly so instructed. If Geiger was attempting to get upon the car, by climbing over the guard rail from the wrong side, just before he collided with the other car, the mere fact that he had succeeded in getting his feet upon the running board, or even upon the body of the car, would not be sufficient to constitute him a passenger.
The learned trial judge also left it to the jury to say whether or not Geiger’s injury resulted from his being struck by the motorman. It does not appear, however, that the jury was given any instructions as to the scope of the motorman’s employment. If his alleged action in striking at Geiger was not within the line of his employment, or if it was in self defense, in attempting to protect himself from the unprovoked assault of Geiger,
The fourth assignment of error is sustained, and the judgment is reversed with a venire facias de novo.