Hunterson v. Union Traction Co.

Opinion by Mb. Justice Bbown, The plaintiff below attempted to get on a moving electric street car. Just as he put one of his feet on the lower step of the rear platform and his righthand had grasped the hand rail, he was thrown, by the accelerated speed of the car, down on the street and dragged about the length “ of two pavements,” sustaming injuries for which ho seeks compensation. The learned trial judge directed a judgment of nonsuit to be entered, for the reason that the plaintiff’s attempt to get on the moving car was an act of negligence, and, as he was injured in such attempt, he could not recover. “ To step on or off a moving car, whether the power which propels the car be steam or electricity, is per se negligence, and if injury results to the passenger, he cannot recover damages. To this rule, as in all rules, there are some rare exceptions: ” Powelson v. United Traction Company, 204 Pa. 474; and to this we now add that, where one is injured in stepping on or getting off a moving car, the burden is upon him to clearly demonstrate to the court why his case should go to the jury as a rare exception to the rule. The question to be settled on this appeal is, whether the appellant’s case is one of the rare [570] exceptions to the rule and a jury should have been allowed to pass upon his negligence. Standing on the northeast corner of Fifth and Wharton streets, in the city of Philadelphia, the appellant saw a car approaching up Fifth street. When near him he signalled the motorman to stop at the north crossing over Fifth street. In response to the signal the motorman slackened the speed of the car, but, without waiting for it to stop, the plaintiff attempted to step on it as it was passing the crossing. While, in a general way, he says the car was moving slowly, when pressed by the appellee to state more definitely what the speed was, as was its right to know in this controversy, involving his negligence as well as its own, he admits it to have been that of a man walking at an ordinary gait, or three or four miles an hour. With his case so presented by himself, it was the duty of the court to say he had been negligent. The duty of the plaintiff was to get on a car that had stopped. His signal to the motorman clearly was to stop, and not merely to slow up. The motorman so understood it and was slackening the speed of the car, that he might stop at the usual stopping place. The slackened speed was not notice to the plaintiff to get on the moving car, but was that it would come to a full stop, if he would wait. No other inference can be drawn. But the plaintiff, impatient, as many of us so often are, even of a second’s delay, tried to board the moving car, instead of waiting until he could safely get on it; and, in doing so, he voluntarily assumed the risk of experiencing just what happened to him. Whatever “ rare exceptions ” there may be to the rule that it is negligence per se to step on or off a moving car, no recovery can be permitted where an injured plaintiff, as in this case, at a crossing signals an approaching car to stop, whose signal is heeded and he so understands by the slackened speed of the car as it approaches the usual stopping place, but who, before it stops, and while running at the speed stated, attempts to get on it. It is the negligence of the injured person in such a case that is a contributing cause to his injuries, and he cannot escape the rule that his carelessness is in the way of his right to recover. Our attention has been called to several of our own cases as authority for the contention of the appellant that the jury [571] should have been permitted to pass upon the question of his negligence, but no one of them is in conflict with the rule which we have applied to the facts now before us. In Stager v. Ridge Ave. Pass. Ry. Co., 119 Pa., 70, the court below refused to take off the judgment of nonsuit, assigning as a reason for its refusal to do so that the evidence of the plaintiff showed that the injury which resulted in the death of Harry W. Stager was caused by his own negligence in attempting to get upon a moving car by way of the front platform; that ho had signalled the driver to stop, and the car’s speed was slackened nearly to a full stop, when, without waiting, he jumped on the front platform of the car, lost bis hold, fell off and was run over; that the accident occurred at a point from three to five feet below the street crossing; that, had he waited a second or two, the car would have been completely stopped and he could have entered it by the rear platform, and, if he had fallen off, he would not have been run over. It is true, we said in that case, “We are not prepared to say, as matter of law, that the attempt of a passenger to board a street car, whilst it is in motion, is to be considered an act of negligence, no matter what may be its rate of speed,” but we affirmed the judgment, because we were “ of opinion that the learned court below was right upon the grounds stated in his opinion, in entering the nonsuit.” As to Walters v. Phila. Traction Co., 161 Pa. 36, upon which the appellant chiefly relies, we need only repeat what we said of it in Powelson v. United Traction Co., supra: “ There was no relaxation of the rule in the case cited, that to get on a moving car is negligence. The language quoted was affirmed in a per curiam opinion; it was not intended by this court to say that, in that case, under the circumstances, it was not negligence in defendant to get on a moving car.” In Jagger v. People’s Pass. Ry. Co., 180 Pa. 436, the court below, in an opinion refusing to take off a nonsuit, described the accident as follows: “ The case as presented then is simply this: The plaintiff motioned to the conductor to stop, the conductor rang the bell to have it done, the motorman slackened the ear; meantime the plaintiff had risen from his seat and gone out on the rear platform ; without awaiting for the car to come to a standstill the plaintiff, suiting his own convenience, got off while it was in motion; the car gave a jerk and he was [572] thrown down and injured.” The judgment was affirmed per curiam. In that case the plaintiff jumped off a moving car; here, he jumped on. For the same reason that no recovery was permitted there, none can be had here. Judgment affirmed.