Neff v. Harrisburg Traction Co.

Opinion by Mr. Justice Green, On the trial of this case two witnesses examined for the defendant testified positively that Mable Neff and her sister left the car while it was in motion and before it stopped. She and her sister testified that they did not leave the car until it stopped, and that it started with a sudden jerk while they were getting off, and that this was the cause of Mable Neff’s fall. The witness, Lillian Adams, testified that the Neff girls got off while [505] the car was moving, and that she herself did not get off till after the car stopped, and she then saw Mable Neff lying on the street where she had fallen. Kohler testified to the same effect. He said: “ I pulled the door open and I noticed one lady got off the car before it stopped and I seen her take a pitch. ... Q. It was the first one you say you saw take that pitch ? A. The first lady got off before the car stopped; I seen her take the pitch towards the comer of the house or curb as they call it.” As these witnesses were entirely disinterested there was no reason to disbelieve their testimony. It was not possible to reconcile their testimony with that of the plaintiff and her sister, because both of them swore positively that the car had stopped before they got off. It was therefore a matter of prime importance to determine how this disputed fact was, and that determination involved the question of the credibility of the witnesses. The plaintiff was of course directly interested, and her sister naturally sympathized with her. Miss Adams and Mr. Kohler were disinterested spectators. If their testimony was believed the plaintiff certainly could not recover. All our decisions are to that effect. In Railroad Co. v. Enches, 127 Pa. 316, we said, “We have so often held that it is contributory negligence for a passenger to leave a car while it is in motion that it is unnecessary to discuss that question.” In Victor v. Railroad Co., 164 Pa. 195, we said, “ It may be stated as a general proposition that it is negligence on the part of a passenger to alight from a moving train.” It is plain therefore that if the jury in this case believed the testimony of the defendant’s witnesses it was their plain duty to return their verdict in favor of the defendant. Now the learned trial judge in commenting upon this part of the case said to the jury, “ And if you take the version given by the defendants, that the car had not yet come to a stop when the plaintiff undertook to get out, then you might find her guilty of contributory negligence, and in that case she would not be entitled to recover.” It is altogether probable from the context that the court did not intend by the use of the word might in this connection, to put, or to intimate, a qualification upon the defendant’s right to a verdict in case the jury should find that the plaintiff left the car while it was in motion. But the literal meaning of the words used in the charge is only that the jury [506] might find for the defendant in the event stated, and not that they should or must so find in that event. If, however, the jury only might find for the defendant in that contingency, there is a necessary implication that they nevertheless might find for the plaintiff, notwithstanding the plaintiff left the car while it was in motion; in other words, they would be under no obligation to find for the defendant in case they found that the plaintiff left the car while it was in motion. As there was no proof of any circumstances which constitute an exception to the operation of the rule, it follows that the instruction should have been in the absolute and peremptory form, and not in the qualified and conditional form in which it was presented. The jury would be at liberty to understand from the words of the charge on this subject that the plaintiff’s act of leaving the ear while it was in motion would be no bar to her recovery in this action. The portion of the charge covered by the first assignment is amenable to the same criticism, because if the plaintiff did get off the car before it stopped, it was the bounden duty of the jury to decide that she ought to have waited, and it would not be correct to say that they might ascertain that she ought to have waited. The use of the word might in this connection in these two portions of the charge would have a tendency to mislead the jury as to their proper function in the contingencies mentioned, and while we think it was entirely unintentional on the part of the learned judge, and that he did not design to convey a doubtful meaning, yet as the jury might have been misled we feel bound to sustain these two assignments of error. As there was no evidence to show that the car was going so slowly as to be substantially stopped when the accident occurred we think it was a mistake to introduce that element into the answer to the defendant’s point, and we therefore sustain the fourth assignment. We think the point should have been affirmed without qualification, just as it stood. The matter of the third assignment is covered by the same ruling. It is true the matter was introduced into the plaintiff’s point, but as there was no evidence to which it could apply, the court should have so said in their answer, instead of affirming the point as it was presented. Judgment reversed and new venire awarded.