195 A. 174 | Pa. Super. Ct. | 1937
Argued October 7, 1937. This action in trespass was brought originally against the city of Philadelphia, which thereupon issued a writ of scire facias bringing into the proceeding the Philadelphia Rapid Transit Company as additional defendant. The jury rendered a verdict of $500 against both defendants. The court later sustained a motion of the transit company for judgment n.o.v., and dismissed a similar motion in behalf of the city. These appeals of the city followed.
On May 26, 1936, about 9:50 a.m., plaintiff, a passenger on an eastbound trolley car, alighted at the intersection of Dauphin street, Seventh street, and Germantown avenue, where many people change cars. The car stopped even with the west end of the building on the southwest corner of Seventh and Dauphin streets, which, according to plaintiff's testimony, was apparently the usual place to discharge passengers. This is due to a diagonal crossing, as Germantown avenue runs northwest across the other two streets, and the northwest corner of Dauphin street and that avenue is "a good car length" to the west. If the car had proceeded farther, it would have extended into this oblique crossing.
We think the evidence was sufficient to establish that the car stopped at approximately the usual place.
The plaintiff, a paperhanger, was carrying a bag containing his tools and overalls, weighing about ten *177 pounds, in one hand and a roll of paper in the other. When he was departing from the car, three or four passengers were ahead of him, a couple more were following, and five or six were crowded around the front doors waiting to board the car. As the plaintiff put his right foot down on the cartway, he fell and was injured. It appears that he stepped into a hole about one and a half feet long, one foot wide, and one and a half to two inches deep, located in the asphalt cartway at the edge of the Belgian runners laid next to the rails. The overhang of the car step when down was twenty-three inches. This defect, caused by a lack of surface repair, had been in existence for more than a month.
A municipality is not an insurer of the absolute safety of pedestrians using its streets and it is not responsible for every misstep or injury; nor does every depression or irregularity impose a liability: Lerner v. City of Phila.,
In our judgment, the evidence was sufficient for the *178 jury to say whether the appellant was guilty of negligence.
The city insists that the evidence established that the plaintiff was guilty of contributory negligence, for, if he had tarried a moment, he would have been able to see the defect and avoid the accident.
We agree with the learned court below that this contention seeks to hold the plaintiff to a higher standard of care than is ordinarily exercised by a person in alighting from a car under similar circumstances. He was in the middle of a group of passengers who were leaving the car and others were waiting to get on it. Where such conditions exist, it is not the usual custom for one to wait until he has an unobstructed vision of the street, thus detaining passengers behind him, nor can it be said that it was his legal duty before alighting to insist that those standing ahead, eagerly waiting to get on the car, move so that he might observe where he was stepping. In Mulford etux. v. Phila. R.T. Co. et al.,
The last position taken by the appellant is that if plaintiff is entitled to recover, the transit company is jointly liable.
The primary duty of the transit company was to operate its cars in a safe manner. A motorman is required to pay attention to the mechanical operation of the car, to the pedestrian on the street, to vehicular traffic, to signals of passengers, lights, and various other matters, which is necessary to give efficient public service. He should stop his car so that passengers may alight only at places that are not manifestly dangerous. In Perret et ux. v. George et al.,
In our view, the proof failed to establish that the transit company was responsible for the accident.
A careful review of this record convinces us that there is no merit in the various assignments of error.
Judgments affirmed.