Seltzer v. Philadelphia & Reading Railway Co.

Opinion by Kephart, J., After a careful review of the evidence, we are fully satisfied there was not sufficient evidence to warrant a submission of this case to the jury. — 314 — The court below submitted the question of defendant’s liability to the jury but failed to take into consideration several essential elements of the case established by well-grounded principles of law. We may concede that Daniel Seltzer was a passenger as the two cars stood on the tracks. The plaintiff contends that the company was negligent in running an engine on the south track between Mill Creek station and the transfer station. A carrier owes to its passengers, intending to leave or board a train at a station, a safe means of exit and approach within the space ordinarily and customarily used in connection with the station. A person about to cross a railroad for these purposes generally need not stop, look and listen for an approaching train. If the way provided to pass between the station is across a track, or if the place to alight is between tracks, he may rely on the place being-kept safe while he is in the act of passing or alighting: Flanagan v. Philadelphia, Wilmington and Baltimore Railroad Co., 181 Pa. 237; Betts v. Lehigh Val. R. R. Co., 191 Pa. 575; Harper v. Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Co., 219 Pa. 368; Besecker v. Delaware, Lackawanna & Western Railroad Co., 220 Pa. 507; Keifner v. Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Co., 223 Pa. 50; Struble v. Penna. Co., 226 Pa. 118; Weisenberg v. Lackawanna & Wyoming Valley Railroad Co., 237 Pa. 33. This duty arises in the contract of carriage which is not fully performed until the passenger has reached his place of destination in safety. The carrier’s duty as to station facilities is limited by what is customarily used for those purposes. Its' obligation to protect passengers does not extend beyond the limits of what may properly be considered station facilities or grounds. This transfer space was some hundred feet distant from the Mill Creek station on the opposite side of the tracks and it was not in use as such transfer station at the time the accident took place. While we may consider it as being in such use, there is no evidence that persons traveled — 315 — from Mill Creek station across intervening tracks and boarded the train from the south side; nor was there any evidence that passengers in leaving these cars crossed over the tracks in the direction of the station. Seltzer was killed when he was apparently traveling away from the station and away from the path on the north side of the tracks. The principles of law as to the use of tracks between trains and stations are not applicable to the case at hand. Where a railroad company undertakes the transportation of passengers for an agreed price, the contract includes many things. The passenger agrees to be bound by all the company’s reasonable rules and regulations for entering, occupying and leaving trains, and if injury befalls him by reason of disregard of the regulations which are necessary to the conduct of the business, the company will not be liable even though the negligence of one of its servants concurred in causing the mischief: Sullivan v. The Philadelphia & Reading Railroad Co., 30 Pa. 234; Deery v. Camden & Atlantic Railroad Co., 163 Pa. 403. Seltzer had for many years traveled to work over these railroads. He knew, or should have known, of the manner of transferring passengers and of the shifting of the engine at this point. It occurred on each morning that he went to work. If he wished to alight from the cars after he was safely on board, it was his. duty to have alighted on the north side of the track. That was the way provided by the regulations of the company for the discharge of passengers from this train. When a railroad has provided safe and convenient means of ingress and egress to- and from its trains, upon one side of its track, it has in this particular discharged its whole duty to passengers, and it is not bound to anticipate that, in disregard of its reasonable and known regulations, they will alight upon the opposite side: Drake v. Penna. R. Co., 137 Pa. 352; The Penna. R. R. Co. v. Zebe, 33 Pa. 318. Where a person alighted from a train on the opposite side of a station and attempted to cross the tracks to reach a street or other outlet, Mr. Justice — 316 — Fell, in Flanagan v. Philadelphia, Wilmington and Baltimore Railroad Co., 181 Pa. 237, supra, said: “If the way provided is- across a track he may rely upon the performance by the company of the duty to keep the track clear while passengers are in the act of passing between the train and the station. But this is when a way is provided and the passenger is impliedly invited to take it. If a passenger disregards the rules of the company by passing to or from the cars on the opposite side from the station or platform provided, he does so at his peril.” There may be circumstances arising from some act of the carrier or other sufficient cause, whereby a passenger may be compelled to leave on the wrong side, or the carrier may waive the rule and acquiesce in passengers alighting from a train at an improper place, or on the nonplatform side. When this is done, it must use reasonable care to protect them: Roberts v. Penna. R. R. Co., 238 Pa. 404. An occasional alighting and discharging of passengers on the wrong side will not establish a custom permitting passengers to leave on the side opposite to where they are required to leave, or on the nonplatform side. There should be evidence of such continuous use for a period of time that the company’s assent to such use may be lawfully inferred. As was said in Drake v. The Railroad Co., supra, “There was a little evidence to the effect that occasionally a passenger got off there, but none that the company consented to- or knew of it, and the learned judge correctly ruled that the rights and duties of the appellant were not affected by it.” Such testimony is inadmissible. The deceased, having left the car on the nonstation side and stepped in front of a moving train, which he must have seen had he but used the slightest care, must be conclusively presumed to have been negligent. He used the wrong sidé at his own peril. See Goller v. Balt. & Ohio R. R. Co., 229 Pa. 412. Where a passenger undertakes to leave a train at such improper place, his acts present facts so clearly and incontestably features of negligence that it — 317 — becomes the duty of the court to pronounce them such as matters of law: Penna. R. R. Co. v. Ogier, 35 Pa. 60. Apart from the contributory negligence of the deceased, it will be observed that the carrier owed him no duty under the circumstances of this case. If it did, it clearly discharged that duty in the manner it operated its engine. Complaint is made that the appellant failed to obey the rules with respect to placing a brakeman at the end of the cars where passengers alighted to prevent the deceased from leaving on the wrong side. As said in Penna. Railroad Co. v. Zebe, supra: “It was not negligence on the part of the company that they did not by force or barriers prevent the parties from leaving at the wrong side”; and in Margo v. Penna. R. R. Co., 213 Pa. 463: “If it is not the duty of a railroad company to prevent passengers from getting off at the wrong side at a regular station it is less its duty to prevent their getting off not only at the wrong side but at the wrong place, and not intended as a stopping place for passengers.” The carrier had completed the transfer of passengers and was in the act of making up its train before leaving. It had discharged the obligation under the rule when the passengers were safely transferred. It was not required, in the shifting or making up of the train, to continuously keep a brakeman at the door of the train. Girton v. Lehigh Valley Railroad Co., 199 Pa. 147, does not present a situation such as that presented in this case. In that case the space between the platform in front of the station across the intervening tracks to the cinder walk along the westbound track had been filled and leveled up by the company to enable passengers to cross over to and from the depot; that it was the usual and customary way which passengers came to and went from the depot and from trains on the westbound track; and to enable" passengers coming on the westbound track to reach the ferry. In such case the jury should pass on the question as to whether or not the grounds as thus in — 318 — dicated were a part of the station as a means of reaching trains from both sides of the tracks. From what we have said we do not consider the failure to build a platform some three hundred feet along and in front of Mill Creek station up to and along the place where the two passenger cars were located as having any bearing on the carrier’s liability. These two places were independent transfer or station points and should not be considered in the light of one continuous station facility. The failure to properly light the cars was not the proximate cause of the injury. The appellee’s evidence shows there was abundance of light from the headlight of the engine. . The judgment is reversed and the record is remitted with direction to enter judgment n. o. v.