154 Pa. 560 | Pa. | 1893
Opinión by
The plaintiff’s son was injured in attempting to get upon one of defendant’s cars. The car had stopped to let off a lady passenger. When she had left the car the horses started to move the car on its course, and at that instant, according to the boy’s testimony, he was endeavoring to get on at the front platform, and had hold of the railing with one hand and was about to set his foot on the step of the car to get aboard. The starting of the car, as the boy alleges, caused him to lose his hold, and he fell to the ground, and in some unexplained way one of his legs got upon the track and was shoved forward by the wheels a few feet, and was hurt. The only negligence alleged against the defendant was the starting of the car while the boy was attempting to get on. But the starting of the ear was not negligence of itself. On the contrary it was in the course of the regular and legitimate business of the defendant. It was neither sudden nor violent nor in any respect negligent or unusual. It could only be negligent in respect of the boy, if the driver or conductor knew of his intention and attempt to become a passenger. The car had stopped long enough to let off the lad)*-, and, had the boy attempted to get on at the rear platform, where the lady was alighting, he would have been perfectly safe. But he was at the front platform, always a dangerous place to get on, and he had given no notice or signal to the men running the car of his intention to become a passenger, or of his attempt to get on. He said the front platform was a little ahead of him and the driver was sitting on the platform and would therefore be in front of him. He was asked: “ Q. You didn’t signal to the driver or conductor, did you— hold up your hand or halloo to them? A. No, sir. . . . Q. Nor did you make any signal whatever that you wanted to get on the car? A. No, sir.”
The case then was that the car was about to start and the boy had not become a passenger, and had given no indication to the driver or conductor of his intent or desire to get on the car. How can it be, then, that the defendant neglected any
So far as the suggestion is concerned that the driver ought to have seen him, it is enough to say that the duty of the driver was to attend to, and look after, his horses. He had to get them started and he was subject to a strict legal duty to see that there were no persons on the track in front of him, and he was certainly not guilt}'- of negligence in rigidly attending to that duty. It was the plain duty of the boy to give some notice of his intent to become a passenger, and until he did so the defendant was not guilty of any negligence in simply not knowing of such intent.
We have already decided everything that is necessary to dispose of this case, in Stager v. Ridge Ave. Pass. Railway Co., 119 Pa. 70. The facts were very similar to those in the present case, except that they constituted a much stronger ground of liability than the facts in the present contention. There the plaintiff was a boy who signaled the driver to stop, and the driver did slacken up almost to the point of stopping. The boy attempted to get on at the front platform and had one foot on the step, when the ear gave a sudden jerk, and he was jolted off and hurt. We held that the motion of the car at the time of the accident was so very slow that we could not say as matter of law that the boy was guilty of contributory negligence in attempting to get on while it was moving. We further held
In the present case the boy testified: “ And I went to get on and just as I went to put my foot on the step the car start
In these circumstances it is perfectly manifest that there is no proof of negligence on the part of the defendant, and therefore the learned court below very properly granted the nonsuit.
Judgment affirmed.