Abel v. Northampton Traction Co.

Opinion by Mb. Justice Potteb, This action was brought to recover damages for the death of plaintiff’s husband, caused, as is alleged, by the negligence of the defendant company. After nine o’clock in the evening of September 1, 1902, a trolley car crowded with passengers started from the platform at Bushkill park on the return trip to Easton. A short distance from the end of the platform there was a switch and siding to enable the cars to pass at that point. As the inward bound car approached the switch, another car coming in the opposite direction from Easton entered the switch and passed over the turnout towards the platform. Instead of stopping on the turnout, the latter car ran on towards the second switch which it reached just as the inbound car was crossing it, and the result was a collision, by which several persons were injured. The outbound car struck the inbound one about the middle of the side, and the husband of tke plaintiff was caught between the two cars and crushed so badly that he died in a few hours. The motorman of the colliding car testified that as he approached the switch so many persons jumped on the car and platform and crowded around him, that he could not move and could not control the car. If it had not been for the crowd he could have averted the accident. It was so dense that he could [336] not move his arms so as to put on the brake. This, he said, was the cause of the accident. On behalf of the plaintiff, Harry Petty testified that at the time of the accident he was on the returning car, which was crowded, the seats being all filled and also the running boards at the sides. He says he “ saw the deceased who was standing on the running board just before he was hit.” That he “had bis arihs around the standard.” And that “ the blow kind of turned him around.” On cross-examination, the witness said that while he saw the deceased on the running board just before he was hit, he could not tell whether he was on the running board or on the ground when he was hit. Floyd Stem testified that he saw the car hit a person who was standing on the running board, but it turned his face so that he could not recognize him, and he was unable to say whether he was plaintiff’s husband. This was all the evidence offered by the plaintiff to show where her husband was standing when struck and injured. But it was sufficient, we think, to justify its submission to the jury. If the decedent was unable to find room upon the car, elsewhere than upon the running board, and if the defendant company accepted him as a passenger in that position, and was undertaking to carry him, he was entitled to protection. If he was thus struck and injured by the other car, the burden of showing that the accident was not caused by the negligence of the motorman of the colliding car, was certainly upon the defendant company. In Madara v. Electric Ry. Co., 192 Pa. 542, Justice Dean said (p. 547) : “ If the accident had been apparently caused by the act of a stranger while the plaintiff was a passenger, as in Railway Co. v. Gibson, 96 Pa. 83 (a collision with a hay wagon), the burden would have been on her to show negligence on the part of the defendant. But when it arose from a collision between defendant’s cars, operated on its own rails, the presumption of negligence arises and the burden is on the defendant to rebut it.” In Thane v. Traction Co., 191 Pa. 249, the present Chief Justice said (p. 253) : “ Cases where the car is crowded and no seat is available rest upon a different basis. There the traveler, if he is to get on at all, must stand on the platform, [337] with its rods, etc., to hold by, or inside with a strap -for that purpose. He is presented with a choice of evils, ánd his action must be judged by the jury, while on. the other hand the carrier by receiving him, undertakes and gives him assurance that it will take care of him and guard him against accident as far as the circumstances will permit.” In Bumbear v. Traction Co., 198 Pa. 198, where the plaintiff was injured while riding on the side step of a crowded open summer car, Justice Fell said (p. 200): “ When the passenger by invitation of the conductor or with his knowledge and assent, and from necessity because of the want of sitting or standing room within the car, rides on the side step, he is entitled to the same degree of diligence to protect him from dangers which are known and may readily be guarded against, as are other passengers.” Hence, if, in the present case, the deceased was upon the car when the collision occurred, 'the presumption of negligence arose and the case was for the jury. On the part of the defendant two witnesses were called, Catharine Nuttall and Sarah Thatcher, both of whom testified that the deceased was standing on the track alongside the car when he was struck, and was not upon the running board. The trial judge instructed the jurjr that the uncontradicted testimony of the two women, if believed, clearly established contributory negligence. In this statement we think there was error. Even if the decedent was standing upon the ground at the side of the car, this is not a place which the court could say as a matter of law was intrinsically dangerous. There was no reason as we see it, why the decedent should have apprehended that the outbound car would continue to run out from the siding and over the switch, and would strike with its front end, the side of the inbound ear. In any event it was not for the court to say as a matter of law that the decedent was guilty of contributory negligence in assuming the position in which he was when struck by the ear. Whether or not his conduct in this respect was negligent under the circumstances was for the jury- Nor should the court-have said that the failure of the deceased to patronize the steam railroad on the night of the [338] accident,’ rather than the trolley, was contributory negligence. Both methods of conveyance were open to the public and the deceased liad a perfect right to exercise his choice. It would be strange indeed if the defendant company could •charge any of its patrons with contributory negligence in using the facilities which it was offering to the public. We sustain the first, second, third and fourth specifications. We consider the testimony irrelevant, which was admitted with reference to providing transportation on the steam railroad, and against the objection of plaintiff’s counsel, as set forth in the fifth, sixth, eighth, ninth and tenth specifications of error, and these assignments are therefore sustained. The fact that plaintiff had consulted counsel as to her right to obtain a divorce, did not affect her right of action in this case, and proof as to that matter was also irrelevant. The eleventh assignment is sustained. We see no error in permitting defendant to show on cross-examination that the father of deceased contributed to the support of the plaintiff. The direct examination had 'shown' that the earning capacity of deceased was very small. Nor do we see that the effect of the collision upon other passengers was material or relevant in showing the extent and character of the injuries.to the deceased. The twelfth and thirteenth specifications are, therefore, dismissed. The judgment is reversed with a venire facias de novo.