Germantown Passenger Railway Co. v. Walling

Mr. Justice Trunkey delivered the opinion of the court, January 24th 1881. At the outset the defendant (plaintiff in error) claims but two questions are presented in the assignments: (1.) Was Bernard Walling guilty of contributory negligence per se, so as to make it the duty of the court below 'to instruct the jury that he could not recover ? And (2.) was the evidence of damage too vague under the requirements of the Act of April 4th 1868, to justify a verdict for the plaintiffs below ? In fact, the second question is not raised in the record. As a general rule, where specific instructions were not requested by a proper point, and no exception to such as were given, there is no error for correction. Complaint is not now made of the charge respecting damages; the only errors alleged are the refusal of the defendant’s points, and they were upon another branch of the case. Surely if the decedent.’s death, without fault in him, was caused by the defendant’s default, the plaintiffs were entitled to recover. In a charge of marked accuracy and fairness the questions of defendant’s negligence and of the decedent’s concurrent negligence were submitted.to the jury. It is not pretended that the court could have refused to submit to ■ them to decide whether the defendant was negligent, and it is conceded that fact is settled by the verdict. If it was the duty of the court to determine there was contributory negligence by the decedent, all the defendant’s points should have been affirmed. This is the sole question now for consideration — the one first stated by defendant. The facts, claimed to reveal want of due care in the decedent, are not in dispute. “ He voluntarily got upon a car so crowded [61] that he was obliged to take a position on the step of the front platform of the car, occupied at the time by two other men, between whom he squeezed into a position, where, for the purpose of retaining his place, he was obliged to hold fast with one hand to the dasher and the other to the iron bar, under the window of the car:” so says the defendant. In addition, the car stopped and received him as a passenger. The driver testifies he knew the car was so full a man could not go through to the back platform. Crowded as it was, the conductor says there was room for more, both inside and on the rear platform. But Walling first tried to get on the rear platform, and failing went to the front. Conductor, driver and passengers acted as if there was room, so long as a man could find a rest for his feet and a place to hold on with his hands. Nor was that action exceptional. Notoriously, it was very common in 1876, and, perhaps, is not infrequent at this day. The companies do not consider such practice dangerous, for they knowingly suffer it, and are parties to it. Their cars stop for passengers when none but experienced conductors could see a footing inside or out. The risk in travelling at the rate of six miles an hour is not that when the rate is sixty, or oven thirty. An act which would strike all minds as gross carelessness in a passenger on a train drawn by steam-power, might be prudent if done on a horse-car. Rules prescribed for observance of passengers on steam railroads, which run their trains at great speed, are very different from those on street railways. In absence of express rules, every passenger knows that what might bo consistent with safety on one would be extremely hazardous on the other. Street railway companies have all along considered their platforms a place of safety, and so have the public. Shall the court say that riding on a platform is so dangerous, that one who pays for standing there can recover nothing for an injury arising from the company’s default ? Meesel v. Lynn & Boston Railroad Co., 8 Allen (Mass.) 234, was a case much like this in its facts. The court said: “ It is well known that the highest speed of a horse railroad car is very moderate, and the driver easily controls it, and stops the car by means of his voice, his reins, and his brake. In turning round an angle, from one street to another, passengers are not required to expect that he will drive at a rapid rate, but, on the contrary, might reasonably expect a careful driver to slacken his speed. The seats inside are not the only places where the managers expect passengers to remain; but it is notorious that they stop habitually to receive passengers to stand inside, till the car is full, and then to stand on the platforms till they are full, and continue to stop and receive them, even after there is no place to stand except on the steps of the platforms. Neither the officers of these corporations, nor the managers of the cai-s, nor the travelling public seem to [62] regard this practice as hazardous; nor does experience, thus far, seem to require that it should be restrained on account of its danger. There is, therefore, no basis upon which the court can decide, upon the evidence reported, that the plaintiff did not use ordinary care. It was a proper case to be submitted to the jury upon the special circumstances which appeared in evidence.” These remarks are quite applicable to the case in hand. Standing on the front platform of a horse-car when there is room inside, is not conclusive evidence that the person injured by the driver’s default was not exercising due care: Maguire v. Middlesex Railroad Co., 115 Mass. 239. A street railway company has the right to carry passengers on the platforms, and, if a passenger be injured while standing there without objection by the company’s agent, whether the injury was with his contributory negligence is for the jury to decide, under all the facts and circumstances detailed in evidence: Burns v. Bellefontaine Railway Co. of St. Louis, 60 Mo. 139. It also has been decided in other states, that, if a passenger be injured while standing on the platform of a street or horse-car, the question of his contributory negligence is one of fact for the jury. So little danger exists in riding on the platforms, accidents to passengers while thus riding are so- rare, that this is the first time the question raised has been presented in Pennsylvania, We think the decisions in other states above referred to are sound. They accord with well-settled principles. What is and what is not negligence, in a particular case, is generally a question for the jury, and not for the court. It is a-lways a question for the jury when the measure of duty is ordinary and reasonable care. When the standard shifts with the circumstances of the case, it is, in its very nature, incapable of being determined as a matter of law. When both the duty and the measure of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proven: West Chester & Philadelphia Railroad Co. v. McElwee, 17 P. F. Smith 311. It is the duty of courts, in cases of clear negligence arising' from an obvious disregard of duty and safety, to determine it as a question of law. This principle was applied in the numerous cases cited by defendant. It should always be when the admitted facts, or the proofs adduced by a party, conclusively show his negligence. The undisputed facts in this case show, that the measure of duty on the part of the deceased was ordinary and reasonable care, and what that was, and whether he complied with it, could only be determined by the jury. Judgment affirmed.