Sulger v. Philadelphia & Reading Railway Co.

Opinion by Mr. Justice Elkin, After a careful review of this record we have concluded that the case was for the jury both as to the negligence of the defendant company and as to the contributory negligence of the deceased husband. The excursion train upon which the accident occurred was made up of nine passenger coaches and a baggage car, the latter having been fitted up by appellant for the use of excursionists as a place to get drinks and secure refreshments. The baggage car thus fitted up was placed in the center of the train for the more convenient access of passengers entering it from either end. This was a plain invitation to the passengers to make use of the baggage car as a proper place to secure refreshments. That the excursionists did make use of it for the purpose intended, was known to the conductor, brakeman and other employees in charge of the train. When the defendant company thus equipped the baggage car, and provided accommodations for securing refreshments in that car, and the employees in charge of the train recognized without objection the use made of the car by the excursionists, it cannot now be heard to say that no duty rested upon it to provide a safe passageway to and from the car for passengers who availed themselves of the privileges which the defendant company evidently intended them to enjoy. In Robinson v. Railroad Co., 135 Mich. 254, the rule applicable to such a case is stated as [131] follows: ^Tbat the railroad company having placed a dining car to the rear of the train and invited its passengers to go to and from it, and failing to provide them with a safe passage from one car to another, it could not escape liability for its failure so to do.” Many other cases might be cited to the same effect. This rule which is founded upon common sense and human experience is as it ought to be of almost universal application in this country. In the present case there was abundant evidence to carry the case to the jury on the question of the failure of the railroad company to properly guard the approaches to the baggage car and to provide a safe passageway for passengers who entered it upon what must be deemed an invitation to make use of it as a place for securing refreshments. As to the contributory negligence of the deceased husband the case is not so clear. It is very ably argued for appellant that the danger of passing from the coaches to the baggage car was open and obvious, and that excursionists who availed themselves of the privileges afforded took the risk which must have been apparent to them. Upon this ground the trial judge was requested to direct a verdict for the defendant, and the court in banc was subsequently asked to enter judgment non obstante veredicto upon the whole record. This argument is plausible but not convincing. It is only in clear cases where the facts are undisputed and but one inference can be drawn from them, that the injured party can be declared guilty of contributory negligence as a matter of law. This is not such a case. The passengers had the right to assume that the railroad company had done its duty in providing a safe passageway to the baggage car and could rely on this assumption in the absence of notice of the' defects about which complaint is here made. There is no evidence of notice to the deceased husband that the platform of and approaches to the baggage car were not properly guarded, or that the place was not safe for the use of passengers, and what knowledge he had of exist [132] ing conditions is a matter of conjecture. Under all tbe circumstances disclosed by the testimony tbe case is not so clear as to warrant tbe court in declaring as a matter of law that tbe deceased husband was guilty of contributory negligence. The most favorable view that can be taken of the contention of appellant is that the contributory negligence of the deceased husband was for the jury. This question was left to the jury with instructions by the trial judge as to which the defendant company cannot justly complain. Our conclusion is that the case was for the jury upon all questions involving the liability of the railroad company and that there was no reversible error in the submission. Judgment affirmed.