247 Pa. 287 | Pa. | 1915
Opinion by
This case was here upon a former appeal as reported in 234 Pa. 545. The facts were stated in the opinion which was there filed. Judgment for the plaintiffs was there reversed, upon the ground that the instructions of the trial judge to the jury did not adequately cover the essential questions involved. Counsel for appellant then contended earnestly, as they do here, that the court below should have held as matter of law that Michael Geiger was not a passenger upon the car of the defendant company, at the time of the accident. We said in the former opinion that it was difficult under the evidence in the case, to reconcile the verdict of the jury in favor of the plaintiffs, with any proper understanding by the jury of what was required to constitute a passenger. The case was therefore sent back for another trial, in which more complete directions could be given to the jury. We felt, however, that it could not properly be said that the record was barren of any evidence, which if credited by the jury, would support a finding that Geiger was at the time of the accident upon the car as a passenger. If there was any such evidence, its credibility was necessarily for the jury. The record of the second trial is now before us. There are twelve assignments of error. The first assignment is to the refusal of the trial judge to affirm defendant’s point requesting
The record shows that Geiger got upon the car while it was standing still, but did he do so with the intention, as he is alleged to have said, of riding to the car barn to make complaint? Or was it for the purpose of assaulting the motorman? That was one of the chief questions in dispute. It appears, that the witness, Daniel Quinlan, testified that he heard Geiger say to the motorman, “1 am going to get on the car, and go up to the car barns and report you.” Witness said that Geiger then got on the running-board and the motorman shoved him off. Then Geiger said, “I am going to report you,” and he walked around the front of the car and got on the other side. He got on the car over the strap or rope, all over but one leg. That was the left side of the car. He was all on the car except his left leg. There was a closed car coming down, and the motorman seemed to be shoving Geiger and striking at him, with something that looked like a piece of brass. Witness said that he saw the motorman strike at Geiger, and that he fell down between the two cars, the summer car and the closed car, and was hurt. This witness only saw the motorman strike at Geiger, and could not say whether he hit him or not.
Another witness, McGrath, testified in substance, that Geiger said that he was going to report the motorman for not turning his running-board up. They would not
In giving to the jury, the law applicable to the facts, the trial judge said, “The placing of a guard rail upon the blind side, or the inside of the car, is a matter for the protection of the passengers, and a notice to the passenger that that is not a place where he can enter the car. Now, did Michael Geiger go around this car for the purpose of becoming a passenger, and did he attempt to enter by the blind side of the car where there was notice given to him, and where there was a bar against his
In the present case, the trial judge omitted, in the main body of thq charge to instruct the jury, that in order to consider Geiger a passenger, they must find not only that he had boarded the car with the intention of becoming a passenger, but also that the carrier had, either expressly or impliedly accepted him as such. But at the close of the main portion of the charge, counsel for appellant noted an exception to the instructions which had then been given, as being inadequate upon this point. The court then supplemented what he had said, by telling the jury that, “In order that the plaintiff may recover at all, it must appear that his death was caused by some negligent act upon the part of the defendant company, or it must appear that Michael Geiger had become an actual passenger; that his presence was known upon the car by the motorman or conductor, and they had accepted him as such.” He added further: “If they did not desire that he should be a passenger on that car, after they had knowledge, it was their duty to stop and remove him from the car.” No exception was taken to this supplemental instruction as being inadequate although to the last sentence, there was an exception, and it was assigned as error. It was however a correct statement of the law. If the evidence given by some of plaintiffs’ witnesses was true, the car was started after the motorman knew that Geiger had gotten upon it. The fact that it was not held, or stopped to enable Geiger to get off, or to be put off, might have been regarded by the jury as an indication that he had been accepted as a passenger, by those in charge of the car.
The case was for the jury, and a careful consideration of the entire charge leads us to the conclusion, that the defendant has no reasonable ground to complain of the manner in which the questions involved were submitted.
The assignments of error are all overruled, and the judgment is affirmed.