Thirteenth & Fifteenth Street Passenger Railway v. Boudrou
92 Pa. 475
Pa.
1880
Check Treatment
Mr. Justice Trunkey

delivered the opinion of the court, February 2d 1880.

The chief debatable question is presented in the sixth, seventh, eighth and tenth specifications of error. Defendant claims that the plaintiff was guilty of negligence which contributed to the accident, and that this was a question for the jury. The rule cited hy its counsel is correct, namely, that to render a railway company liable to a passenger, the company shall be guilty of some negligence or omission which, mediately or immediately, produced or enhanced the injury; and the passenger shall not have been guilty of any want of ordinary care and prudence, which directly or indirectly contributed to the injury; since no one can recover for an injury of which his own negligence was in whole, or in part, the proximate cause: 2 Red-field on Rail., sect. 193. This rule permits recovery where the passenger was negligent, if there was no causal connection between his negligence and the injury. Hence, it is said in the same section, “ Although the plaintiff’s misconduct may have contributed remotely to the injury, if the defendant’s misconduct was the immediate cause óf it, and with the exercise of prudence he might have prevented it, he is not excused.” And in Whart. on Neg., sect. 303, the principle is thus stated, “In order to defeat recovery of damages arising from the defendant’s negligence, the plaintiff’s negligence must have been the proximate and not the remote cause of the injury; in other words, must be its juridical cause, and not merely one of its conditions.” The author further says, sect. 324, “ The negligence, to make it a juridical cause, must be such, that by the usual course of events it would result, unless independent moral agencies intervene, in the particular injury. * * * In other words, to put the same doctrine into the language made familiar to us by the adoption of the terms ‘proximate’ and ‘remote,’ my *480‘remote’ negligence will not protect a person who, by ‘proximate’ negligence does me an injury.” In England, the general rule is, that the plaintiff, in an action for negligence, cannot succeed if he has himself been guil.ty of any negligence or want of ordinary care which contributed to the accident. And a well-established qualification of the rule is, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him: Radley v. Railway Co., Law Rep., 1 Ap. Cas. 754 (1876). Here, perhaps, the rule is not qualified to so great an extent; yet it is clear, that a plaintiff may recover, though he did not use due care, if his negligence in nowise caused the accident resulting in his injury. Indeed, the principle stated by Wharton, supra, seems to have been adopted in. Creed v. Pennsylvania Railroad Co., 5 Norris 139, where Gordon, J., said, “The test for contributory negligence is found in the affirmative of the question, does that negligence contribute in any degree to the production of the injury complained of? If it does, there can be no recovery; if it does not, it is not to be considered.” The defendant’s second point was, that upon the facts as therein stated, the plaintiff was guilty of negligence; and the fourth was, that the platforms of a passenger railway car are for ingress and egress, and it is negligence in a passenger to use them for any other purpose; and if the plaintiff occupied the back platform of the car on which he received his injury, for the purpose of being carried as a passenger, he was guilty of contributory negligence. Such were the instructions prayed, yet the defendant now urges that, “under the testimony, the question whether Mr. Boudrou’s position on the rear platform contributed to his injury, was one for the jury.” In truth, there was no controversy as to the circumstances of the accident, there was but one way to find the facts, if the jury regarded the testimony ; and at the trial, the defendant demanded that the court should say there was concurrent negligence, if certain facts were found. The learned judge, taking a different and correct view, very properly charged that the plaintiff could not recover if the injury resulted from any negligence on his part; that if the jury should find that the plaintiff' was negligent in standing on the rear platform, and yet find that the collision could not have happened but for the negligence of the driver of car 14, plaintiff’s negligence was remote and not a bar to his recovery. IBs reasons given, as leading to that conclusion, are unanswerable. The large number of passengers in this city, who’voluntarily stand on the platforms, because there is neither sitting nor standing room in the cars, do not, and ought not, anticipate that they will be run over by following cars. Their position has no tendency to induce the driving of *481one car into another. Whatever the degree of their negligence in riding on the platform, and the risks they take in so doing, every one knows that so long as he remains there, he is in no danger of being run down by a car, unless from its heedless handling. - When the plaintiff was struck, his post was a condition, but not a cause of his injury. It neither lessened the speed of the car he was on nor increased that of the other; his presence was not a cause of the broken chain and reckless driving of car 14; his place was an incident of an overcrowded car, whose conductor had left the platform to give him standing-room, and had not pointed him to a seat or requested him to enter the car. We are not persuaded that different minds could honestly draw different conclusions from the facts, but on the contrary are convinced, the court was right in refusing the second and fourth points, and in the instructions set out in the sixth assignment.

As a general rule it cannot be doubted the question of negligence isn one of fact, and not of law ; and the case must be very clear which will justify the court in refusing its submission to the jury: Detroit & Michigan Railroad v. Steenberg, 17 Mich. 99; Mayo v. Boston & Maine Railroad, 104 Mass. 137. But it has been repeatedly held that certain facts, when established, amount to negligence per se; Hoag v. Lake Shore & M. S. Railroad Co., 4 Norris 293. And when the evidence is insufficient to warrant a finding of negligence, it is the duty of the court to order a nonsuit, or refuse to submit the question, as the case may require. And nonsuit will be ordered if the plaintiff’s testimony clearly shows his contributory fault. In some cases negligence is an inference of law from the facts proved: Empire Transportation Co. v. Wamsutta Oil Co., 13 P. F. Smith 14; in others, there may not be evidence of the defendant’s negligence, and if that be proved, it may be clear that there is no testimony of the plaintiff’s concurrent negligence. It is error to submit a question to the jury of which there is no evidence: Jones v. Wood, 4 Harris 25; Evans v. Mengel, 6 Watts 72; 1 Barr 68.

But one point remains that calls for remark. In Central Railroad of N. J. v. Cook, 1 W. N. C. 319, it was held that a plaintiff can recover the amount of his loss or damage, that he pecuniarily suffered or sustained from personal injuries by reason of the defendant’s negligence, notwithstanding the Act of April 4th 1868, Pamph. L. 58. This case was then pending on error assigned to the ruling of the court below, that the Act of 1868 limited the plaintiff’s recovery to a sum not exceeding $3000, and because of that decision, which was to the very point, it was reversed by agreement of the parties. The argument 'on part of defendant was ingenious, but we are not convinced that Railroad v. Cook should be overruled. Its authority is in conservation of the reserved right to every man, that for an injury done him in his per*482son, lie shall have remedy by due course of law. The people have withheld power from the legislature and the courts to depriv'e them of that remedy, or to circumscribe it so that a jury can only give a pitiful fraction of the damage sustained. Nothing less than the full amount of pecuniary damage which a man suffers from an injury to him in his lands, goods or person, fills the measure secured to him in the Declaration of Rights. As well might it be attempted to defeat the whole remedy as a part; and with equal propriety could it be declared, that in all actions against persons using a railroad as a public highway, for damages from injuries to property, the sum recovered shall not exceed $3000, as for injuries to the plaintiff’s person. A limitation of recovery to a sum less than the actual damage, is palpably in conflict with the right to remedy by the due course of law.

Judgment affirmed.

Chief Justice Sharswood dissented and Justice Paxson filed a dissenting opinion.