Bard v. Pennsylvania Traction Co.

Per Curiam, The appellant attempted to take passage on one of the cars of the defendant company. It was full to overflowing at the time and there was no standing room in the car or upon the platform. The appellant finally effected a lodgment of one foot upon the platform and supported the other on the outside of it. In this position he held himself by means of the post at the outside corner of the platform, being directly against the outer end of the dash, or inclosure of the platform. An employee of the defendant came to the car to adjust the trolley 99 pole and to enable him to reach it he required the appellant to leave the corner where he stood. He then moved to a position wholly outside the car upon what is known as the bumper. The employee left the car on finishing his work at the trolley pole. It did not appear that any person having charge of the car had seen the appellant or had knowledge of his position. After he had ridden a short distance upon the bumper the ear stopped to discharge some of its passengers and while standing was struck by a car coming up in the rear, and appellant’s foot was injured. Was it contributory negligence on the part of the appellant to take a position wholly outside of the car, and expose himself to the danger that overtook him ? It is argued that it was not, and reliance is put upon the Street Railway v. Boudrou, 92 Pa. 475, for. the support of this position. But the plaintiff in that case was riding upon the platform of the car with the knowledge of the conductor. This court declined to say that it was negligence per se on the part of a passenger to ride upon the platform of a street car. So in the Germantown Pass. Railway v. Walling, 97 Pa. 55, the passenger injured was upon the front platform with the knowledge and assent of the conductor. This fact was set up as conclusive proof of contributory negligence, but we held that it was not enough. Standing alone, it was not per se proof of negligence. But in the case before us the alleged passenger was on the outside of the car, in an obvious place of danger, without the assent or the knowledge of the conductor; and he was injured by an occurrence that was a known danger incident to his position on the bumper of the car. The bumper was not for use by passengers for any purpose, but to relieve against the shock of just such an accident as happened. We think the learned judge was right in directing a compulsory nonsuit on the facts of this case and the judgment is affirmed.