Donnelly v. Buffalo & Lake Erie Traction Co.

Opinion by Morrison, J., The first and second assignments of error were argued together by appellant’s counsel. To sustain either of them we must hold that there was not sufficient evidence to carry the case to the jury on the question of the negligence of the defendant, or that under all of the evidence, the plaintiff was, as a matter of law, guilty of contributory negligence. We cannot agree with the contention of the appellant’s counsel on either of those questions. If the plaintiff and her two witnesses were believed by the jury, the car had stopped at Wayne street, where she was standing at a place where the cars usually stopped; that the plaintiff was there waiting to become a passenger on that car; and that when she took hold of the hand-rail, the conductor suddenly started the car and she was thrown to the ground and injured. The testimony of the plaintiff and her two witnesses brings the case squarely within the rule found in Rea v. Media, etc., Electric Ry. Co., 221 Pa. 129. There the Supreme Court said: “The plaintiff testified that the car had stopped and she had put her left foot on the step and was reaching with her right hand for the hand-rail, when the conductor suddenly started the car and she was thrown to the ground. This made a prima facie case for the jury.” It does not appear in that case that the conductor saw the plaintiff at all or that she gave any’signal or indication that she intended to board the car. It was contended in that case that the plaintiff was guilty of contributory negligence. The court said on that point: “It was certainly evidence of it, but did not establish the fact so clearly that the court could take the question from the jury.” As we understand the present case we cannot sustain the first and second assignments, or either of them, without practically overruling the above cited case. The learned counsel for appellant asks us to place a certain [114] construction on the plaintiff’s testimony as to how she was trying to get on the car and then to say, as a matter of law, that she was injured by her own awkwardness in taking hold of the hand-rail at her left with her right hand. We do not think the plaintiff’s evidence clearly warrants the inference drawn from it by the learned counsel. The probability is that the proper inference to be drawn from the testimony is that she took hold of the hand-rail near the rear of the car at her right and was in the act of getting on the car when it started. Surely the fact that the counsel and the court cannot agree as to the meaning of her testimony on this point justified the submission of the question of her contributory negligence to the jury. It may be difficult to distinguish the present case, on its facts, from Pitcher v. People’s St. Ry. Co., 154 Pa. 560. All we care to say about that and kindred cases, cited by appellant’s counsel, is that they were close cases and in the Pitcher case two of the judges of the Supreme Court dissented on the ground that the case was for the jury, and later cases, especially Rea v. Media, etc., Electric Ry. Co. seem to us to require a court to submit such a case as the present one to a jury. The learned counsel cites and relies on Blair v. Phila. Rapid Transit Co., 36 Pa. Superior Ct. 319, but that case is readily distinguished from the present one. There it was not shown that the car had come to a stop and it was not at a regular stopping place. The plaintiff testified: “I never wanted a car to stop for me altogether. I thought I could get on a car better when it was running — it just gently swings you on.” That case rightly understood does not support the appellant’s contention. The first and second assignments are not sustained. In support of the third assignment it is argued that the defendant could not be guilty of negligence, even if the car stopped at Wayne street, until the plaintiff did or said something to indicate to the conductor that she desired to become a passenger. We think the learned court below took the correct view of the law, under the evidence on that point. If the plaintiff was standing at a point where the car usually stopped for passengers, and it did stop there, it was the duty of the conductor to give her reasonable time to get on the car safely: Redington v. [115] Harrisburg Traction Co., 210 Pa. 648; Shuart v. Traction Co., 15 Pa. Superior Ct. 26; McCurdy v. Traction Co., 15 Pa. Superior Ct. 29. The third assignment is not sustained. We discover no merit in the fourth assignment. The learned court carefully called the attention of the jury to the testimony of all of the witnesses on the question of whether or not the car stopped at Wayne street. It is true that the court did not, in words, say that three persons testified that the car stopped and six that it did not stop. But reading the charge of the court on this question leads us to the conclusion that it would have been a very stupid juror who did not discover, from the charge, that the witnesses were two to one against the plaintiff’s contention as to the stopping of the car. The appellant’s counsel, on this point, cites and relies on Hodder v. Phila. Transit Co., 217 Pa. 110, but there the plaintiff alone testified that the car stopped and she was pointedly contradicted by six witnesses and the court below failed to call the attention of the jury to this striking circumstance. For that failure the Supreme Court sustained an assignment of error. But in the present case the learned judge in his charge did practically all that was required by the Hodder case. The fourth assignment is not sustained. As to the fifth and sixth assignments, we remark that the counsel was out of order in his remarks to the jury and he merited a rebuke. But we cannot say that “these remarks were so prejudicial to the defendant as to require us to take notice of them as reversible error:” McNeil & Bros. Co. v. Crucible Steel Co., 207 Pa. 493-504; see also Phœnix Brewing Co. v. Weiss, 23 Pa. Superior Ct. 519; Shaffer v. Coleman, 35 Pa. Superior Ct. 386. The assignments of error are all dismissed and the judgment is affirmed.