55 Pa. Super. 204 | Pa. Super. Ct. | 1913
Opinion by
The plaintiff was one of a party of about twenty-five persons who boarded one of the large interurban cars of the defendant company at Grove Station, between nine and ten o’clock on the night of July 5, 1910, for the purpose of returning to the city of Pittsburg. The members of the party had been holding a picnic in the country, on the Sunday afternoon in question, and had been drinking some beer, but the plaintiff testified that neither he nor any other member of the party was intoxicated. Ernest Becker and his father Charles Becker were members of the party in whose company the plaintiff entered the car 'and became a passenger. The plaintiff and his party were orderly and peaceable until after the conductor had passed through the car and collected the fares of the plaintiff and the other members of the party and returned to his position on the rear platform. .The plaintiff was sitting with a friend in one of the seats near the front of the car and Ernest Becker was seated with another man in a seat across the aisle from them. After the party had been in the car about five minutes, according to the testimony of the plaintiff, Ernest Becker began an altercation with the plaintiff and, without any provocation applied to the plaintiff vile epithets and used threatening language. According to the testimony of some of the witnesses
The first allegation of negligence upon the part of the defendant company contained in plaintiff’s statement, that the defendant was negligent “In permitting drunken and disorderly men to board said car,” was not sustained by the evidence. There was no evidence that at the time the plaintiff, Charles Becker, and the other members of their party entered the car there was anything in the appearance or conduct of any of the party to attract attention or excite suspicion that to admit them would occasion danger or even inconvenience to' other passengers, or to each other. Whether the conductor was negligent in admitting them to the car must be determined under the evidence as to their condition, appearance and conduct at the time they tendered themselves as passengers: Brehony v. Union Traction Co., 218 Pa. 123. The evidence, at the trial, disclosed that this plaintiff and probably all the other members of the party had been drinking some beer, but there was no evidence as to their conduct and appearance at the time they entered the car from which'a jury should have been permitted to find that the employees of the defendant company were negligent in receiving them "as passengers. The entire party had been orderly for a short time after the car had started upon its journey to the city. The only person who, under the evidence produced by the plaintiff, had prior to the moment when plaintiff was injured exhibited any disposition to violence or created any disorder was Ernest Becker. There had been no fight and no person had made any attempt to strike a blow. Ernest Becker was under the control of those who were his friends as well as the friends of the plaintiff, and the conductor was standing in the aisle between him and the plaintiff. The plaintiff was thus protected from any danger from the only source which seemed_to_threaten danger, and
The judgment is reversed.