McMillan v. Federal Street & Pleasant Valley Passenger Railway Co., Appeal, No. 139

Appeal, No. 139 | Pa. | Jan 6, 1896

Opinion by

Mr. Justice Fell,

The reasonableness of the rule of the defendant company forbidding passengers to stand on the platform when there was room inside the ear seems to have been conceded at the trial. The questions submitted to the jury were whether under the circumstances the plaintiff was excused from complying with the rule, and whether unnecessary force was used in putting him off the car. While the testimony as to a part of the occurrence was conflicting, the main facts are clear of doubt. The plaintiff was asked by the conductor to go from the platform to the inside of the car, where there were vacant seats which were pointed out to him. He refused to do so. He knew of the rule of the company which forbade passengers to stand on the platform when there was room in the car, and if his attention was not called to it at that time he understood fully that the conductor’s request had reference to the rule and that it was his duty to enforce it. After some discussion and the plaintiff’s final refusal to comply with the request made, the car was stopped and he was told that he must either go inside or get off. He persisted in his refusal to do either, and was put off. When the car was started he attempted to get on and was resisted by the conductor, who pushed him away from the platform. He was not injured. The force used was to loosen his hold from the railing, to remove him from the platform, and to prevent him from boarding the car again while it was in motion. These facts were either admitted or so clearly established by the testimony as to be beyond dispute. It remains to consider whether under the circumstances it was unreasonable to enforce the rule, and whether unnecessary force was used in ejecting the plaintiff from the car.

The rule of the company was a reasonable one, intended to secure the safety and comfort of passengers. It was the duty of the plaintiff to obey it and the right of the company to enforce it. Cases might arise in which it would seem that the rule should not be rigidly enforced, or an immediate compliance with it required, as where the passenger was at the point of alighting and his presence for a few moments on the platform would not endanger or inconvenience any one. But the necessity for the enforcement of the rule is not to be determined by the passenger. A rule that might be suspended at his will would cease to be a rule. The management of the car in all matters which relate to the conduct of passengers is with the conductor, and ordinarily the enforcement or suspension of a rule must rest with him. A passenger in any event would have no right to complain of the enforcement of a reasonable rule unless he had stated to the conductor an adequate reason for its suspension in his case. This the plaintiff did not do. He testified that he told the conductor that he was not going far enough “ to justify ” him in going into the car, because if he went in and sat down he would have to come right out again; that he would be at his stopping place, and there was no use in his going in ; that he “ was not going far enough to go in” and “it was not worth while to go in.” When asked by the conductor how far he was going his only reply was, “ Not far.” This was coupled with the assertion that he would not go in. His statement that he was not going far, with his refusal to say how far, gave the conductor no information. He might have meant a square or a mile. That he rode some distance during the controversy before the car was stopped and afterwards attempted to get on and finish his journey cast serious doubt upon his good faith and confirmed the suspicion of want of candor which his previous conduct had indicated. He undertook to make himself the judge of the necessity for the enforcement of the rule. In this he was wrong.

The learned judge was inaccurate in stating in the part of his charge which is the subject of the first specification of error that the plaintiff had testified that he had been kicked. No such statement appears in his testimony. There was testimony given by others that he had been kicked, due no doubt to the fact that the conductor held his foot in a position to push the plaintiff away from the platform when he attempted to get on the car while it was in motion. The plaintiff testified that the conductor alone put him off the car; that it was done by pushing him, that he did not know that the motorman touched him. He distinctly and repeatedly stated that he was not aware of being struck or kicked, and that as far as he knew he was not. There is no evidence to justify the conclusion that there was any wanton or reckless conduct on the part of the conductor, and the plaintiff complained of none. The whole of his complaint was that he had been put off, not the manner in which it was done.

When the plaintiff resisted the conductor in the proper performance of his duty he made the use of force necessary, and if in the struggle which followed there was not an exact and delicate adjustment of it to the end in view he has no ground for complaint.

The assignments of error are sustained and the judgment is reversed.