Stankowcz v. Baltimore & Ohio Railroad

62 Pa. Super. 125 | Pa. Super. Ct. | 1916

Opinion by

Trexler, J.,

Plaintiff lived in Philadelphia and worked at Eddy-stone, Pa., and was what is commonly called a commuter. He arrived at defendant’s depot in the City of Philadelphia at 6:20 in the morning. The time table produced by defendant shows that the scheduled time for the train to leave was 6:19. The train was almost exclusively a workingmen’s train and was not punctual as to leaving. When plaintiff arrived at the station all the gates were open. He went through one of them, saw as he thought the train for Eddystone, that a number of people were getting on the train, that others were inside the cars, and that the brakeman was standing outside the train. As he was attempting to board the train, the engine bumped it and plaintiff was injured by coming in contact with the glass door of the coach. The train was not upon the track it usually left, but it did not always leave upon the same track. There was no warning given to the plaintiff that he should not board the train. There was testimony that would warrant the conclusion that the train was the regular Eddystone train. There were no signs over the open gates indicating the destination of trains. The above is putting the case as strongly for the plaintiff as the facts warrant, and if the jury took these facts as verity their verdict was right. The relation of carrier and passenger began as soon as the plaintiff in good faith and with the intention of becoming a passenger entered in a lawful manner upon the carrier’s premises: Powell v. Philadelphia & Reading Ry. Co., 220 Pa. 638. The standard of duty for the company is “strictest vigilance” : Bockelcamp v. L. & W. V. R. R. Co., 232 Pa. 66. He was entitled to such protection as the utmost degree of diligence and care on the part of the defendant would give him. Certainly there was nothing unreasonable in the conduct of the plaintiff under the circumstances, in taking a train which was going to his destination and which others were entering. If, in his entering the train, he was subjecting himself to dangers which the employees of the railroad company should have warned him against, it was their fault, not his, if an accident occurred. It is negligence to start a train before the passengers who are manifestly intending to board it are on it: Hatch v. Railway Co., 212 Pa. 29. To use the language in Feiser v. Philadelphia & Reading Ry. Co., 245 Pa. 422, “the evidence does not show that either the conductor or the brakeman actually saw him, but taking all the facts and circumstances into consideration we cannot say as a matter of law that the employees could not have seen him if they had exercised reasonable care, or that they had no duty to perform in connection with the safety of this intending passenger.”

All the assignments of error are overruled. Judgment affirmed.