Feiser v. Philadelphia & Reading Railway Co.

Opinion by Mr. Justice Elkin, Appellant contended in the court below and contends here that there was not sufficient evidence of negligence in the case at bar to submit to the jury, and that it was error not to direct a verdict, for defendant as requested at the trial. In the printed argument learned counsel for appellant states his position as follows: “It was the duty of the plaintiff to prove that some employee of the defendant company in charge of the train saw the plaintiff attempting to board the train or was in a position where he could have seen him. If the time for the departure of the train had come before the plaintiff approached it and the signal had been given to start it and the employees had gotten upon the train, then there was no duty upon them to stop it and hold the train until the plaintiff could get on board.” One answer to this argument is that there is no evidence that the signal to start the train had been given, or to show what position the employees were in when plaintiff stepped on the platform of the car. It is argued that there was no testimony to show that the train was started before schedule time, or that any employee saw the plaintiff approaching for the purpose of boarding the train, or to indicate that, he was an intending passenger. This position, which is very strongly pressed in the argument, has made it necessary to carefully examine all the facts and circumstances disclosed by the record for the purpose of determining whether there was sufficient testimony, to carry the case to the jury. Without offering any testimony counsel for defendant at the conclusion of plaintiff’s case asked for binding instructions. Under these circumstances all the facts stated by the witnesses produced by the plaintiff, and the inferences to be drawn therefrom, must be accepted as established. This means that the facts testified to are undisputed and that it is the province of the jury to draw the inferences that may properly arise under such a state of facts. The precise question for decision here is whether, giving to the un [425] disputed facts and the inferences to be drawn therefrom their due weight, there was sufficient evidence to warrant a finding by the jury that the train had been negligently started while the plaintiff, an intending passenger, was attempting to board it. We have concluded that the evidence was sufficient to sustain the negligence charged in the statement of claim, and that the learned trial judge would not have been warranted in taking the case from the jury. To have done so would have required the trial judge to declare as a matter of law that the defendant was not guilty of the negligence charged, and this under the evidence would have been error. It is not disputed that the plaintiff was an intending passenger, having purchased a ticket, and waited at the station more than two hours after midnight to take the train in question. He fell asleep in the station while waiting for the train and was awakened by an employee of the defendant company when the time had arrived, for its departure at 2:15 a. m. He testifies, and this testimony must be accepted as true because undisputed, that he had ample time to get aboard the train after he was notified, and although he went to the toilet room, when he returned, the gate to the train shed was open, the sign above it gave notice that it was the train he desired to take, and he walked directly along the platform to one of the coaches, took hold of the rail in the usual way of boarding a car, stepped upon the first step, when the train “buckled” or “jerked” in such a violent manner as to throw him under the wheel. The reasonable inference to be drawn from this testimony is that the train was standing still when he attempted to board it, and that it was started with such a sudden jerk before he had time to enter the car and reach a place of safety as to throw him off and thus cause the very severe injuries for which he seeks to secure damages in this action. There is no evidence to show that he attempted to board a moving train, or that he was negligent in this regard. The contention of appellant is that there is no [426] evidence to indicate that any employee in charge of the train saw him, or could have seen him by the exercise of reasonable care. The evidence does not show that either the conductor or brakeman actually saw him, but taking all the facts and circumstances into consideration we cannot say as a matter of law that the employees could not have seen him if they had exercised reasonable care, or that they had no duty to perform in connection with the safety of this intending passenger. The notification in the station that his train was ready, the open gate and the sign above it, and the train standing on the tracks along side of the plaftorm, were invitations to plaintiff to take that train, and everything he did indicated that he was an intending passenger. Under these circumstances our conclusion is that it was for the jury to say whether the employees had negligently started the train without giving plaintiff an opportunity to enter the car in safety. The fourth assignment of error relates to the instructions of the trial judge on the question of the measure of damages. While these instructions might have gone into the question more fully, we cannot find anything therein contained which can be said to be clearly erroneous. Indeed, the charge as a whole was full, fair and impartial, and as we view it appellant has no just ground of complaint about the manner in which the learned trial judge submitted the case to the jury. Judgment affirmed.