255 Pa. 427 | Pa. | 1917
Opinion by
Plaintiff sued to recover damages for the death of her husband caused by- being struck by one of defendant’s
The lower court submitted the case to the jury and the verdict wps returned for plaintiff which was sustained by the court on motion for judgment non obstante veredicto.
The rule is well settled that, where a carrier accepts, as a passenger, a person known to be affected by physical or mental disability whereby the hazards of travel are increased, it is liable to a greater degree of care for the safety of.such passenger than is ordinarily required. Under this rule if a passenger is received in an intoxicated condition, which is apparent to the carrier’s employee, a higher degree of care toward him is required than in case of a passenger in full possession of his faculties (Warren v. Pittsburgh & Butler Ry. Co., 243 Pa. 15) and, in case of injury, the question whether the carrier exposed the passenger to danger against which because of his intoxication he was unable to guard and
A careful study of the facts shows the present case is distinguishable from the Warren case. There, deceased was ejected from the car while in a stupid drunken condition and left standing in the roadway opposite a small station platform. The accident occurred when he was but a few hundred feet from the station, walking along the track in the direction of his home. In the present case, although deceased used vile and profane language and bore evidence of intoxication, he was able to alight from the car without assistance and travel for a distance of almost a mile, when he reached a public highway crossing. He was familiar with the locality and indicated his knowledge of where he was going. In the meantime, and previous to the accident, he had taken at least two additional drinks of liquor and after stopping to converse with a neighbor, had again started along the track in the direction of his home and proceeded a short distance when he fell and was injured by an approaching car. Under these facts it not only appears he was in a physical condition to know where he was going and to take care of himself when he left the car, but had, subsequent to leaving it, added to his already intoxicated condition by his voluntary act. We would be carrying the rule of Warren v. Pittsburgh & Butler Ry. Co. (supra) further than was intended to hold that the jury should be permitted, under the facts of this case, to say that defendant’s servants failed in their duty to deceased and that their acts were the proximate cause of his death nearly an hour later. The case falls rather within Hamilton v. Pittsburgh & Lake Erie R. R. Co., 183 Pa. 638, where this court held that, since deceased was not in a helpless condition of intoxication when ejected from the train and appeared to walk without difficulty, defend
The burden was on plaintiff to show not only that defendant was negligent in ejecting deceased from its car at Ferguson Station and under the circumstances described by the witnesses, but also that such negligence was the proximate cause of death. In view of the undisputed evidence that deceased increased his intoxication by taking at least two drinks of liquor subsequent ,to the time of his removal from the car at a regular station of defendant it cannot be said that the only reasonable inference to be drawn from the evidence was that defendant’s act was the sole and proximate cause of the injury and it was error to give the jury an opportunity to guess which was the correct theory: Glancy v. McKees Rocks Borough, 243 Pa. 216.
The judgment is reversed.