Rathgebe v. Pennsylvania Railroad, 179 Pa. 31

Rathgebe v. Pennsylvania Railroad

179 Pa. 31 | Pa. | 1897

Opinion by

Mr. Justice McCollum,

This action was brought to recover damages for personal injuries alleged to have been received by the plaintiff on the 19th of January, 1898, through the negligence of the defendant. It was conceded on the trial that the plaintiff fell and was injured while walking from the waiting room to the train, but there was a conflict in the evidence as to the place where she fell. The. plaintiff claimed that she fell on the slope while the defendant claimed that she fell on the platform between the side track and the Sewickley track. The defendant’s claim involved an admission that the plaintiff’s fall was caused by the ice on the platform between these tracks, but it did not necessarily convict the defendant of negligence, because it was shown and undisputed that this ice must have been formed from the water which leaked, or was splashed, upon it from the water cars which passed on the Sewickley track but a few minutes before her fall. The evidence submitted by the defendant was mainly directed to this line of defense, and the learned judge of the court below substantially charged the jury that if it was credited by them the plaintiff could not recover. '

The plaintiff claimed that the defendant was chargeable with negligence in the construction of the station platform, and in permitting ah accumulation of snow and ice upon it. The length of this platform from the west end of the station to the freight platform, and in front of the ticket office and waiting room, was about fifty, feet. Along the whole length of it facing the track, it was ten or twelve inches higher than the track platform. For at least three fifths of the length of the station platform there was a slope from it to the platform below. The width of the slope was about three feet, and at each end of it there was nine or ten feet of platform, terminating in a ten or twelve inch step. Passengers in going from the waiting rooms to the trains would have to pass over this step, or over the slope. They were not limited by any order or direction of the defendant to either route, but were at liberty to pass over any part of the platform on their way to and from trains.

*35The evidence showing the construction of the station platform was sufficient to charge the defendant with negligence in this particular, and the evidence in regard to snow and ice upon it warranted an inference that the defendant had negligently permitted them to accumulate there. But the defendant claimed that if the plaintiff slipped and fell on the slope she was not entitled to recover because, in the then existing condition of the platform and its approaches, she was chargeable with contributory negligence in passing over it. The court was requested, but refused, to direct the jury to find for the defendant on this ground. Did the court err in refusing to grant this request ? We think not. The question whether the plaintiff was negligent in passing over the slope on her way to the train was under all the evidence in the case for the jury. The instructions in regard to contributory negligence, and the .effect of it upon the plaintiff’s case, were unobjectionable and clear. The fact that her husband “ cautioned her to be careful, as the platform was slippery ” and that “ she answered that she would be careful” was not a confession of carelessness, or that' there was a better route from the waiting room to the train.

A number of witnesses were permitted to testify that the platform and approaches from the station to the tracks were dangerous, but on the request of the defendant’s counsel, and before argument, this testimony was stricken out and withdrawn from the consideration of the jury. It is now contended that the court erred in denying the motion of the defendant’s counsel to withdraw a juror and continue the cause. The admission of incompetent evidence and the subsequent withdrawal of it before argument furnishes in itself no ground for continuance, or for reversing the judgment: McGettigan v. Potts, 149 Pa. 155; Canal Co. v. Barnes, 31 Pa. 193; Railroad Co. v. Butler, 57 Pa. 335; Railroad Co. v. Smith, 125 Pa. 259; Furniture Co. v. School District, 158 Pa. 35. In the case before us there was no good reason for apprehending or believing that the defendant would be or was prejudiced by the testimony which was withdrawn before argument, and in regard to which the jury received positive and proper instructions from the court.

Judgment affirmed.