Phila. R. v. Alvord

Opinion, Mb. Justice McCollum : The defendant’s points were properly denied. The testimony of the plaintiff described conduct of the brakeman which was in violation of his duty and negligent, and which it was alleged caused the injury complained of. While her statement was uncorroborated, and was flatly contradicted, it presented a case for the jury. It was undisputed,' that in attempting to pass from the platform off the station into the car, she fell between the steps of the car and the platform. We quote her version of the occurrence: “I was accustomed to get on the last car, on the front of it always.....As I looked forward I saw the brakeman, distinctly, with his face turned toward me, and his manner indicated that he was waiting and expecting me to get on the train, as usual, when I should reach it; I reached the car, and as I was about to step on, I went to step on the step, he dashed in with a spring between me and the step, on to a higher step, which prevented me from taking my step securely, my getting a foothold; and the start he gave me, and the unexpected thing caused me to take too short a step, and I went down simply on my toes, and [47] prevented as I said before, my getting my step—his jumping in between prevented me from getting my step, which would not have happened if he had not been there. I slipped down at once of course.....and I was wedged in.” John Keely, the brakeman, testified on this point as follows: “ I was standing at my post of duty, at the rear car, on the platform of the station, by the body of the car, a little to the rear of the front step. I saw this lady approaching down the platform, and waited on her. She being a regular rider, I had some idea that her intention was to come down and get in that car for West Chester, as it was a West Chester car. She came down and in attempting to get on she stepped on the step, and apparently made a short step, or stepped on her dress, I could not tell which, as I was right in the rear, or a little to one side of her, and the result was she slipped and fell on the step. I assisted her to her feet, and then as she was passing up the steps I came in the rear, back of her, up the steps, reached in front and opened the door for her. She passed in and was seated when the train started.” These extracts present the claims and evidence of the contending parties, respecting the cause and manner of the plaintiff’s .fall. The statement of the learned judge in his charge to the jury, that the plaintiff testified that she was pushed or jostled by the brakeman, was unauthorized by her evidence, and was misleading. These words in their connection implied that the plaintiff was forcibly prevented from securing a foothold and ascending the steps of the car in safety. There was nothing in the evidence from which such an inference could be drawn. The plaintiff did not state, or hint even, that the brakeman ran against or pushed her. But the plaintiff’s fourth point and the answer to it, coupled with the misstatement referred to, allowed the jury to find a fact of which there was no evidence, and to rest a verdict upon it. This certainly was error, and because of it the judgment must be reversed: Greber v. Kleekner, 2 Pa. 289; Musselman v. Railroad Co., 2 W. N. 105. Judgment reversed, and venire facias de novo awarded.