Sharrer v. Paxson

Opinion by Mb. Justice McCollum, The jury found that the plaintiff’s husband was standing upon the step of the car with a firm hold on each side rail, and that while in this position the company’s servant broke his hold on the rails and pushed him from the step, and that in consequence of this action of the servant he received the injury which resulted in his death. The evidence was sufficient to warrant the finding, and the instructions in regard to it were clear and impartial. The testimony of R. C. English was direct and positive and it was corroborated by the testimony of Ellis Shaffer. True, it was contradicted by a number of witnesses called by the company, but if the facts involved in the finding were material they were for the jury upon the whole testimony in relation to the occurrence. It is contended however that, inasmuch as the deceased reached the position from which he was pushed while the train was moving, his own negligence contributed to his death and is a bar to this action. The attempt to board a moving train is undoubtedly a negligent and hazardous act, but if it is successful and the negligent party gets safely upon the car it will not justify or excuse the subsequent negligence of the company or its servants, by which he is injured. The rights of Sharrer in the position from which he was thrown were the same as if he had taken it before the train started, or as the rights of a passenger who while the train is moving leaves his seat in the body of the car and stands on the platform of it. He was on the car when the negligence of the company intervened and hurled him from it. His presence there was not the proximate cause of his death. The peril involved in getting there was passed, and the negligence or misconduct of which he was the victim was not included in the risks to which his position exposed him : Passenger Railway Co. v. Boudrou, 92 Pa. 475. If he had been thrown from the [30] car by an ordinary jolt of it, as was the plaintiff in Railroad Co. v. Hoosey, 99 Pa. 492, he might have been considered as having voluntarily exposed himself to or assumed a risk incident to his position and thereby caused or contributed to the injury he received. But he had no reason to anticipate the act which caused his death, and to push him from the step under the circumstances established by the verdict was as great an outrage as to push from the platform while the train is moving any passenger who may be found standing upon it. The negligence of the deceased in attempting to get on the moving car cannot relieve the company from responsibility for the consequences of the negligent act committed by its employee after the former accomplished his purpose. He was lawfully upon the steps of the car and entitled to the rights of a passenger in it. This sufficiently appeared by the ticket in his possession. The risk he ran in. getting there was no abridgment of his right to pass from the step to the platform and thence to a seat in the car. The company’s principal contention is that under all the evidence in the case the court should have directed the jury to find for the defendants, and we are clearly of opinion that it cannot be sustained. We discover no error in the instructions or in the ruling complained of in the fourth specification. If there was error in the admission of the declaration of the deceased it was cured by the withdrawal of the evidence in relation to it, and the instruction to the jury to disregard it. The specifications are overruled. Judgment affirmed.