140 A. 522 | Pa. | 1928
Argued January 4, 1928. Jennie Murray and her husband, Robert E. Murray, sued to recover for injuries sustained by the former as a result of alleged negligence on the part of the Philadelphia Rapid Transit Co. The statement of claim asserts that the injury was caused by the step of one of defendant's trolleys not being in proper position when Mrs. Murray attempted to board the car. She testified that the car was equipped with a folding step which closed up when the door shut and fell into place for use by passengers when the door was opened; that, looking straight ahead, she put a foot on the step, believing it was in the proper position, and, as she raised herself, the step went down about three inches, under her weight, causing her right ankle to turn and throwing her to the ground; that, as a result, she sustained bodily injuries. Binding instructions were given in defendant's favor; judgment was entered accordingly, and this appeal on behalf of Jennie Murray ensued.
Defendant offered testimony that there was no fault with the mechanism of the step or in its operation, but we rule the case on the testimony relied on by appellant, which shows that she either attempted to use the step without observing its position at the time, or that, seeing the step was not in proper position, she took the chance of using it and was hurt. Under the circumstances, the court below did not err in taking the case from the jury.
The judgment appealed from is affirmed. *74
