Farr v. Philadelphia & Reading Railway

Opinion by Oblady, J., The plaintiff, an old man aged eighty years, became a passenger on a train at Philadelphia about nine o’clock in the evening to be carried to Frankford, a branch terminal station' of the defendant’s system. Just before arriving at his destination he was obliged to go to the water-closet in the car to relieve his bladder. He came out of the closet as soon as he could adjust his clothing “ probably one or two minutes after the train stopped,” at which time the train was standing still at Frankford station. All the passengers and employees had left the train; in his words “ there was not a soul in sight.” As he was descending from the car to the station platform, when his foot was on the second car step, the train, suddenly and without warning, started backward out of the station which caused him to be thrown the full length of his body upon the platform. Without offering any evidence the defendant requested the court to give binding instructions in its favor.. This was refused and the case was submitted to the jury in a charge to which no exception was taken, the single assignment of error being based on the refusal of the court to affirm a point submitted, viz: “ under all the evidence the verdict must be for the defendant.” The verdict determines that the plaintiff was a passenger at the time of the accident; that he had a-good reason for entering the closet and did not remain therein an unreasonable time ; that he sustained his injuries through the sudden starting of the train when he was in the act of alighting from the car at Frankford station. There is no evidence tending to show that his delay in getting off the car was due to any negligence on his part. The defendant company adopted and maintained the water-closet as a necessary part of the equipment of the car, and while it remained unlocked it was an invitation to passengers to enter and use it as their necessities required. If his use of the closet was reasonable and proper, the fact that he entered it a few minutes (a purely conjectural time) before the train reached the station’ [334] would not of itself imply contributory negligence on his part. It does not appear what time the train stood at the terminal station but it is apparent that had it remained standing for but a few seconds longer, the plaintiff would have been discharged in safety. The exact length of time to be given must depend very largely upon circumstances. A sufficient time means, time to alight safely in the use of reasonable diligence and care, and has regard to all the circumstances which affect the getting off the train: Penna. R. R. Co. v. Lyons, 129 Pa. 113. This question was fairly submitted by the learned trial judge as follows: If you find he did not adopt for his own protection the precautions that a reasonably prudent man ought, then you ought not to find a verdict in his favor. If you find he was not guilty of negligence in the matter, and the railroad employees were, you will then pass to the amount of damages.” As railroad companies usually carry not merely the vigorous and active, but also those who, from age or extreme youth, are slow in their movements, the time of stopping is not to be measured by the time in which the former may make their exit from the cars, but by the time in which the other class may, using diligence, but without hurry and confusioiq alight. It certainly would not be permissible for them to be so reckless in regard to the limbs and lives of passengers as to start the trains, when it is known, or with reasonable care might be known, that passengers are in the act of alighting : Hutchinson on Carriers, 2d ed. sec. 612; Ray on Negligence of Imposed Duties, sec. 5, and notes; Patterson on Railway Accident Law, sec. 257. It may not be negligence per se for the trainmen not to make search for passengers who may be unavoidably detained in the closets when a train has completed its trip and is started from a terminal station to the yards, but the same might be urged in regard to passengers asleep or helplessly sick in the seats. The duty in each case would be measured by the circumstances. Moreover this company did define its duty in regard to assisting passengers. Its rules require that the conductors must see that brakeman promptly assist passengers when entering or leaving cars, and that brakemen must assist passengers when entering or leaving the cars, and further, that brakemen must also pass through the cars at the end of each trip, after pas [335] sengers have left them, and carefully watch for articles forgotten by passengers. Under this rule no part of the car is exempted from the brakeman’s search for lost or forgotten articles and compliance with its direction would make known the presence of passengers who have not left the car. The closet is as likely a place to find a lost or forgotten article as any other part of the car. It is idle to claim that there was a reasonable examination of the car before it started to back away from the station. If there had been the plaintiff would have been discovered: Leggett v. Western N. Y., etc., Railroad Company, 28 W. N. C. 236. Their duty to make search for passengers was as imperative as to search for forgotten items of property. But rule or no rule, under the facts of this case it was for the jury to say, under the evidence and the reasonable inferences to be drawn from it, whether the plaintiff was given a reasonable time to alight when the car was standing at rest at its destination: Penna. R. R. Co. v. Kilgore, 32 Pa. 292; Penna. R. R. Co. v. Peters, 116 Pa. 206; Girton v. Lehigh Valley Railroad Co., 17 Pa. Superior Ct. 143 ; Girton v. Lehigh Valley R. R. Co., 199 Pa. 147 ; 6 Cyc. secs. 598 and 613. There is no room for distinction between the measure of duty owing to passengers alighting at a terminal point as compared with that required at intermediate stations: Raughley v. West Jersey, etc., Railroad Co., 202 Pa. 43. The defendant did not offer any evidence and if the plaintiff was to be believed he acted as promptly as it was possible for him to do, and when in the act of alighting he found himself in an emergency of the defendant’s making and was violently thrown from the car. When there is a doubt as to the inference to be drawn from the facts or where the measure of duty is ordinary and reasonable care, and the degree of care required varies with the circumstances, the question of negligence is necessarily for the jury: Rusterholtz v. N. Y., etc., Railroad Co., 191 Pa. 390; Iseminger v. New Haven Water & Power Co., 206 Pa. 591; Evans v. Philadelphia, 205 Pa. 193; Shuart v. Traction Co., 15 Pa. Superior Ct. 26. The judgment is affirmed.