Thayne v. Scranton Traction Co.

Opinion by Porter, J., The plaintiff, a man of fifty-six years, was a passenger on a [448] closed car of the defendant company. He admits that he took a position on the back platform, with knowledge that there were vacant seats within the car. He stood holding to a metal rod which protected the back window when a collision occurred. The effect of the collision was to throw the plaintiff first forwards and then backwards, causing him to strike the iron dashboard with his back and to fall over the dashboard into the street, whereby he claims to have sustained injuries to his back and to his bladder. The case thus presents a voluntary occupancy of the platform of.an electric car by a passenger having knowledge of the vacancy of seats within the car. The defendant company offered no testimony to rebut the presumption of negligence on its part, but claims that the court below should have instructed the jury for the defendant on the ground of the plaintiff’s contributory negligence. The decision of this case involves two questions. First, was the plaintiff negligent in remaining on the platform, under the circumstances ? and second, if so, did his negligence contribute to Iris injury? Both of these questions must be determined affirmatively in order to sustain the position taken by the defendant. We have not been furnished with any authority in Pennsylvania which decides the first question above stated, as applied to an electric car. The Supreme Court have held that it is negligence to ride in the baggage car of a railroad train (P. R. R. v. Langdon, 92 Pa. 21), and to ride on the platforms of the cars of such a train. Mr. Justice Stebkett, saying: “ There was not a particle of testimony from which it could be reasonably inferred that the plaintiff was compelled to take or retain the position he did on the platform, having shown by his own testimony that at the critical juncture he was in a position where no one of ordinary prudence should have placed himself. It was incumbent on him to prove that he was there from necessity and not from choice: ” C. & A. R. R. v. Hoosey, 99 Pa. 492. On.the other hand, the same court has held in Passenger Ry. v. Boudrou, 92 Pa. 475, that a passenger injured while upon the rear platform of a crowded street car was not estopped from recovering because of contributory negligence. Referring to this case in Bard v. Traction Co., 176 Pa. 97, the court say: “ This court declined to say that it was negligence per se [449] on the part of a passenger to ride upon the platform of a street car.” Again in Railway Co. v. Walling, 97 Pa. 55, it has been held that it is not contributory negligence per se for a passenger to ride on the step of the front platform of a crowded street railway car with the assent of the conductor or driver. But Mr. Justice Trunkey gives a reason: “ The companies do not consider such practice dangerous, for they knowingly suffer it and are parties to it. . . . The risk in travelling at the rate of six miles an hour is not that when the rate is sixty or even thirty. An act which would strike all minds as gross carelessness in a passenger on a train drawn by steam power, might, be prudent if done on a horse car. ... In absence of express rules every passenger knows that what might be consistent with safety on one, would be extremely hazardous on the other.” In Jackson v. Traction Co., 182 Pa. 104, it was said to be contributory negligence on the part of a woman sitting at the end seat of an open electric car, to stand up with a basket on her arm, — she while in that position, having fallen or been thrown from the car. .So far, therefore, as our own state is concerned it would seem that the responsibility of a passenger occupying the platform of a trolley car has not been determined. Is the character of the risk of such occupancy that of the railroad or the horse car? The electric car and the horse car have points of similarity. They operate upon the surface of streets and carry passengers short distances for low fares. Here their likeness ceases. The electric motor has brought upon the crowded city streets as well as upon many of the country highways, cars or trains with a speed and size approaching those of the steam road; subject in their passage to grade crossings of other cars at well nigh every street corner and of vehicles and foot passengers at every foot of their course and on every hand; running at short intervals of time and space making collision peculiarly likely; subject to frequent and abrupt starting, stopping and turning and to many switches with possibility of derailment. All of these things make transportation upon the electric car quite as perilous as upon steam roads and leave no room for comparison with the slow, deliberate, and easily controlled transporta [450] tion by horses. Under these circumstances, is the passenger who rides upon the platform of the trolley to be held to the rule applicable to steam roads or to the horse car ? This change in the character of surface transportation has had an effect on the use of the highways. The rule of stop, look, and listen of the steam road crossing has been applied in modified form to the electric road. The language of Mr. Justice McCollum in Winter v. Railway Co., 153 Pa. 26, may be quoted: “ The substitution of cables and electric cars for the horse car and the omnibus is a change which renders impracticable and dangerous certain uses of the streets which were once permissible and safe. It introduces new conditions, the nonobservance of which constitutes negligence. It is the duty of property owners on streets occupied by cable and electric lines of railway, and of persons crossing or driving upon such streets to recognize and conform to these conditions. The risk of a crossing or possession of the tracks of a railway operated by horse power, is not to be compared with the peril involved in a crossing or occupancy of tracks of a steam, cable or electric railway. The conditions are notably unlike in the size, weight, and speed of the cars and in the power by which they are moved.” The passengers upon these modern vehicles (put by the learned justice in the same category with those propelled by-steam), must be held to the obligations imposed by the new conditions. If the baggage car and platform of the steam road are known places of danger, to at least the same degree are the platforms of the electric car. We reach the conclusion then that the platform of an electric car is a place of known danger, and if, while there, a passenger, who could have found a seat within, is injured, he is guilty of contributory negligence, provided his presence on the platform contributed to the injury which he received. “The test for contributory negligence,” says Mr. Justice Gordon, in Creed v, P. R. R., 86 Pa. 139, “ is found hr the affirmative of the question, Does that negligence contribute in any degree to the production of the injury complained of ? If it does, there can be no recovery; if it does not, it is not to be considered.” See also L. V. R. R. v. Greiner, 113 Pa. 600. [451] Did the plaintiff’s position on the platform of the car contribute to his injury? He testifies, as do his physicians, that his injury was caused by striking his back upon the platform railing. The character and cause of the physical injury were thus determined by the plaintiff’s own testimony and that of his witnesses to be dué to his position on the platform. Had he been within the car it cannot be assumed that he would have been injured in the same manner and to the same extent, or that he would have been injured at all. When the plaintiff boarded the car he was accompanied by a friend who took a seat within the car and was uninjured by the collision. Again, the plaintiff’s evidence is that the passengers inside the car were “ shook up and scared, and some hurt,” but McAvo3r, the plaintiff’s friend, who was in the car and had the better opportunity of knowing what befell the other passengers, says : “ The people that was inside, when they seen them coming, they jumped up and run to the back of the car, it shook them up pretty well in there, some of them was thrown down I think, I can’t say for sure.” On all the testimony it seems plain that the peculiar injury complained of by the plaintiff was contributed to, if not wholly caused by, his presence on the platform, and thus convicts him of such contributory negligence as is a bar to recovery. The reasons above given lead us to the conclusion that the duty of the trial judge was to direct the jury to find for the defendant. The judgment is therefore reversed.