29 A.2d 4 | Pa. | 1942
This was an action in trespass for injuries allegedly resulting from negligence in the operation of a street railway car.
Ethel I. Hufnagle, the plaintiff, testified that she boarded a street car of Pittsburgh Railways Company, entering at a door in the center of the car; that as she was walking towards the rear of the car to find a seat it started with a "very violent lurch"; that the lurch was "the most violent" she had ever encountered in riding street cars; and that she fell or was thrown to the floor of the car, sustaining injuries. At the time Miss Hufnagel was carrying an umbrella, a pocketbook, a package of mail in a large envelope, and a book. She admitted she did not take hold of any support as she proceeded towards the rear of the car, although she testified she had one arm free. Another witness, one Thompson, testified that the car "started with a lurch, kind of a jump"; that the lurch was "more severe" than usual; and stated it "jerked me back on the seat." Trube, the only other witness, testified the car "started off with a jerk"; that it was "one of the most violent jerks I have experienced in a street car"; that "there seemed to be a little confusion, people slipping about in their seats"; and that the jerk knocked a package off his lap.
At the close of plaintiff's case, the whole of which is as above stated, the Railways Company moved for binding instructions on the ground that the evidence was not sufficient in law to sustain a charge of negligent operation. Binding instructions were refused and the jury returned a verdict against the company in the sum of $4500. The Railways Company then filed a motion for judgment n. o. v., which was likewise refused, and judgment *568 was entered against the company, in the amount of the verdict, from which it appeals.
"In a long line of decisions, reviewed by us in Smith v.Pittsburgh Rys. Co.,
Far from showing an occurrence that could have been caused only by an extraordinary jolt or jerk, appellee's evidence as to the happening of the accident and its effect upon her is entirely consistent with a mere loss of equilibrium brought about by a movement of the car of the type she was bound to anticipate and guard against. Encumbered with packages and walking unsupported in the car, she was obviously in a position to be toppled over *569
by an ordinary jerk such as is incident to the usual operation of trolley cars, and her fall, occasioned under these circumstances, was not so unusual or violent as to permit a jury to predicate thereon a finding that the jerk was the result of negligent operation. "It is common knowledge that a passenger can be thrown out of his seat only by an unusual or extraordinary jerk, whereas it is not unusual for persons to lose their balance while standing or walking in a car if an ordinary or moderate jerk occurs": Smith v. Pittsburgh Rys.Co., supra, 544. See also Endicott v. Phila. R. T. Co., supra;McClusky v. Shenango Val. Traction Co.,
Viewed in its most favorable light, the evidence clearly falls short of the standard required to establish negligence in cases of this character; and the conclusion of the court below to the contrary antagonizes all our cases on the subject. We might add that no authority is cited as supporting the view of the court below, either in its opinion or in the paper book of the appellee, *570 and no attempt has been made to distinguish Endicott v. Phila.R. T. or McClusky v. Shenango Val. Traction Co., both cited supra, which cases we deem absolutely controlling here.
The judgment is reversed and judgment is here entered for appellant, Pittsburgh Railways Company.