Pildish v. Pittsburgh Railways Co.

Opinion by Tkexlek, J., “A passenger who rides on a side step of a street car when it is reasonably practicable for him to go inside the car, assumes all the risks of his position and in all [198] cases lie assumes the risk incident to the usual swaying and jolting of the car and from collision from passing vehicles and with obstructions of whatever nature which unexpectedly appear. These are dangers which cannot be* guarded against by the careful and prudent management of the car. But when the passenger by invitation of the conductor or with his knowledge and assent and from necessity because of the want of sitting or standing room inside the car rides on the side step, he is entitled to the same degree of diligence to protect him from dangers which are known or may readily be guarded against as are other passengers”: Bumbear v. United Traction Co., 198 Pa. 198. This statement has been followed in a number of cases, the latest we have found being Simkins v. Philadelphia Rapid Transit Co., 244 Pa. 182. In the case we are considering there was testimony to go to the jury showing that the car was crowded. “Awfully crowded, and no place to sit or stand inside the car,” the plaintiff testified. Although there was conflicting testimony as to this fact, the question whether there was available space inside the car was for the jury: Renney v. Webster Street Ry. Co., 50 Pa. Superior Ct. 579. The fact that plaintiff had given his seat to a lady and thus voluntarily taken a place of danger does not change the matter. The real question is whether all the passengers allowed upon the car could be accommodated inside the car, or whether some were compelled by necessity to stand on the running board. When such overcrowding is permitted the responsibility to all the passengers follows. The case of Paterson v. Philadelphia Rapid Transit Co., 218 Pa. 359, cited by appellant, as was pointed out by Brother Orlady in Renney v. Street Ry. Co., supra, does not change the rule. The appellant contends that as the plaintiff knew of the existence of the poles and their nearness to the tracks, he should have guarded against the danger by avoiding it. The circumstances of the case are as fol [199] lows: the night was dark, the plaintiff had requested the conductor to stop at a certain street but the car passed .the street without stopping. He then turned to again apprise the conductor of his desire to alight. In the act of turning around on the running board to attract the attention of the conductor, his head came in contact with a pole and the injury ensued. Whether with the knowledge he had of the existence of the poles, the plaintiff was assuming a risk he should have avoided, according to the standards of an ordinarily prudent man, was a question for the jury. Considering the above facts, the darkness of the night, the fact that this request for the car to stop had been disregarded, that he was being borne beyond his destination, that his knowledge of the location of the poles was not a positive knowledge of the exact location of each pole but merely such a casual knowledge as was acquired by his having ridden upon the running board before and that to catch the attention of the conductor he had to turn his head and thus unintentionally pass the danger line, the question we think was rightly left to the jury and could not be decided by the court as a matter of law. The case of Burns v. Johnstown Ry. Co., 213 Pa. 143, differs from this. There the passenger on the car knew of the existence of the poles and showed by his acts and declarations that at the time of the accident his mind was on the danger he was incurring. All the assignments of error are overruled and the judgment is affirmed.