Kradel v. Pittsburgh, Harmony, Butler & New Castle Railway Co.

Opinion by Me. Justice Feazee, Plaintiff sued to recover damages for the death of her husband caused by- being struck by one of defendant’s [429] cars. On the morning of the day of the accident Kradel left his home at Eberbart station on tbe line of defendant’s railway for Warrendale in Allegheny County, at wbicb latter place be became somewhat under tbe influence of liquor. In tbe afternoon while in that condition be boarded one of defendant’s cars at Warrendale to return home. He was obliged to change cars at Evans City and upon entering tbe car at this point banded tbe conductor twenty-five cents, but refused to state bis destination, whereupon tbe conductor assumed that to be Butler, tbe end of tbe line, tbe fare to that pla.ce being twenty-five cents. Kradel was seated in tbe smoking compartment and when tbe car reached Eberbart a stop was made to take on a passenger. Immediately after leaving tbe station tbe conductor was infoi’med by another passenger that Krabel lived at Eberbart, whereupon tbe car was stopped about a car length from tbe station platform. Kradel went to,tbe rear platform but refused to alight, demanding that tbe car be backed to tbe station. Tbe conductor refused to comply with this request and signaled tbe motorman to go ahead. The nest stop was Ferguson, one and one-half miles from Eberbart by tbe railway and two miles by tbe wagon road. A short distance before reaching Ferguson Station is a siding known as “Kohlers” at wbicb place the' conductor intended to transfer Kradel to a car bound in tbe opposite direction and return him to Eberbart. In the meantime Kradel engaged in a dispute with tbe conductor using vile and abusive language in tbe presence of other passengers; tbe conductor thereupon decided not to attempt to transfer him at Kohlers siding but to continue to Ferguson Station where there is a shelter shed-for' use of passengers. When tbe car reached Ferguson the. conductor informed Kradel .be must leave tbe car and took him by tbe arm; Kradel, offering no resistance, said “All right”-and left without,further disputé.'' At this .station a public, road crosses defendant’s' railway and parallels it' for some distance' when' it again crosses [430] to the opposite side and continues on to Eberhart where Kradel resided. There was also a driveway along defendant’s track which was occasionally used and leading directly from the station to the public road where.it again crosses the railway. Kradel was well acquainted with the neighborhood and the roads and on leaving the car at Ferguson Station walked either on the. track or on the adjoining road in the direction of his home. . Upon reaching the public road at the point it crosses the track, he continued along the railway instead of following the road, stopping at the house of an acquaintance and inviting the latter to drink with him from a bottle which Kradel carried; both drank and Kradel continued along the track for a short distance, when he was seen to again drink from the bottle, and, after walking a short distance further, fall, and before he could arise was struck by a car that came over the crest of a hill, receiving injuries from which he died in a very short time. This occurred when deceased was in the neighborhood of a half mile from his home, and about one hour after leaving defendant’s car at Ferguson. The lower court submitted the case to the jury and the verdict wps returned for plaintiff which was sustained by the court on motion for judgment non obstante veredicto. The rule is well settled that, where a carrier accepts, as a passenger, a person known to be affected by physical or mental disability whereby the hazards of travel are increased, it is liable to a greater degree of care for the safety of.such passenger than is ordinarily required. Under this rule if a passenger is received in an intoxicated condition, which is apparent to the carrier’s employee, a higher degree of care toward him is required than in case of a passenger in full possession of his faculties (Warren v. Pittsburgh & Butler Ry. Co., 243 Pa. 15) and, in case of injury, the question whether the carrier exposed the passenger to danger against which because of his intoxication he was unable to guard and [431] whether that exposure was the proximate cause of his death, are usually questions for the jury: Warren v. Pittsburgh & Butler Ry. Co., supra. The court below relied upon the above decision as ruling here and submitted the case to the jury. A careful study of the facts shows the present case is distinguishable from the Warren case. There, deceased was ejected from the car while in a stupid drunken condition and left standing in the roadway opposite a small station platform. The accident occurred when he was but a few hundred feet from the station, walking along the track in the direction of his home. In the present case, although deceased used vile and profane language and bore evidence of intoxication, he was able to alight from the car without assistance and travel for a distance of almost a mile, when he reached a public highway crossing. He was familiar with the locality and indicated his knowledge of where he was going. In the meantime, and previous to the accident, he had taken at least two additional drinks of liquor and after stopping to converse with a neighbor, had again started along the track in the direction of his home and proceeded a short distance when he fell and was injured by an approaching car. Under these facts it not only appears he was in a physical condition to know where he was going and to take care of himself when he left the car, but had, subsequent to leaving it, added to his already intoxicated condition by his voluntary act. We would be carrying the rule of Warren v. Pittsburgh & Butler Ry. Co. (supra) further than was intended to hold that the jury should be permitted, under the facts of this case, to say that defendant’s servants failed in their duty to deceased and that their acts were the proximate cause of his death nearly an hour later. The case falls rather within Hamilton v. Pittsburgh & Lake Erie R. R. Co., 183 Pa. 638, where this court held that, since deceased was not in a helpless condition of intoxication when ejected from the train and appeared to walk without difficulty, defend [432] ant was not liable for injury received some hours later. There was also evidence that he had been drinking subsequent to leaving the train, and in the meantime had reached a place of safety, which he left to walk along the tracks of another railroad. The burden was on plaintiff to show not only that defendant was negligent in ejecting deceased from its car at Ferguson Station and under the circumstances described by the witnesses, but also that such negligence was the proximate cause of death. In view of the undisputed evidence that deceased increased his intoxication by taking at least two drinks of liquor subsequent ,to the time of his removal from the car at a regular station of defendant it cannot be said that the only reasonable inference to be drawn from the evidence was that defendant’s act was the sole and proximate cause of the injury and it was error to give the jury an opportunity to guess which was the correct theory: Glancy v. McKees Rocks Borough, 243 Pa. 216. The judgment is reversed.