New York Etc. R. Co. v. Enches

127 Pa. 316 | Pa. | 1889

Opinion,

Mr. Justice Green:

There was abundant evidence in the cause that the plaintiff got off the car after it had started and while it was in motion. In view of this testimony the defendant’s fourth and fifth points were propounded to the court below. There was no evidence that there was any necessity, apparent or real, for the plaintiff to leave the car while it was in motion, and hence there was no occasion for a qualifying reservation as to the effect of her act of leaving the car while in motion, if the jury believed such to be the fact. We are clearly of opinion therefore that it was the duty of the learned court below to answer the points upon the facts of which they were predicated.

This being so, the simple question raised by the fourth point was, whether the plaintiff was guilty of contributory negligence if the jury believed from the evidence that she undertook to get off the train after it began to move. The mere fact of the accident proved that the motion of the car was sufficient to cause the accident from the attempt to leave the ear after it started, and hence the hypothesis of the point was fairly presented in the very terms in which it was stated, and required a categorical answer. We have so often held that it is contributory negligence for a passenger to leave a car while it is in motion, that it is unnecessary to discuss that question : Railroad v. Aspell, 23 Pa. 147 ; McClintock v. Penn. R. Co., 21 W. N. 133. There being nothing in the circumstances of this case to qualify the effect of the facts presented in the point, it should have been affirmed as it stood. The result of the qualified answer was to transfer from the court to the jury the disposition of the question as to the legal effect of certain facts hypothetically stated in the point, but warranted by sufficient testimony.

The same considerations are applicable in an increased degree to the answer given to the defendant’s fifth point. There, the act of leaving the car while in motion and in disregard of the warning of the brakeman not to leave, was submitted to the court and was answered in the same manner as the fourth point was answered, by referring the whole legal effect of the facts supposed by the point to the jury. There was distinct affirmative evidence that such a warning had been given, but the court entirely ignored this feature of the point and said nothing about it in the answer. This was clear error. The answers to both these points were in reality not answers. They were mere directions to the jury that if the plaintiff was guilty of contributory negligence, in attempting to leave the car, she could not recover. Of course those instructions were legally true,-but they were not instructions upon the effect of the particular facts hypothetically stated in the points, and hence were not responsive to the points in any sense. If there had been no evidence to support the hypotheses of the points, the error would have been immaterial; but there was such evidence, and the defendant had a right to a specific instruction npon the effect of the facts stated. The first and second assignments of error are sustained.

We are of opinion also that the third assignment is sustained. On the trial of such a case, it is the duty of the court to explain to the jury what would constitute contributory negligence of the plaintiff, and then to instruct them that if they found such facts in the case, the plaintiff could not recover if the accident resulted wholly or in part from such contributory negligence. It is not enough to say, generally, to the jury that a plaintiff cannot recover if he or she has been guilty of contributory negligence. The jury must be enlightened as to what facts would constitute such negligence in view of the testimony, otherwise they have no guide by which to regulate their action, in determining the controverted facts. In the present case, there was no definition or statement of any kind as to what was the meaning of contributory negligence, or as to what kind of facts would constitute it or even tend to prove it. There is but one sentence in the charge on that subject, and that is a mere general statement of the rule of law that a plaintiff who has been guilty of contributory negligence cannot recover. All the rest of the charge is upon the alleged negligence of the defendant and the question of damages, and under the whole charge and the answers to the points the jury were without any instructions either upon the meaning of the term “ contributory negligence,” or upon the question as to whether there were any facts in evidence either proving or tending to prove that there was contributory negligence in the case. We have frequently held that such charges are misleading and therefore erroneous. The- third assignment is sustained. The fourth and fifth assignments are not sustained.

Judgment reversed, and new venire awarded.