Sandford v. Hestonville etc. R.

Opinion, Me. Justice Clank : In the case of an adult, or of a person reasonably competent to care for himself, it has never been held that the front platform of a crowded street-passenger car is a place of known danger, or that it is an act of negligence per se, either upon part of the company or of the passenger, that the latter is permitted to or does actually occupy that place when the car is in motion. On the contrary, in West Phila. etc. Ry. Co. v. [92] Gallagher, 108 Pa. 524, where a boy under fourteen years of age got upon the lower step of the front platform of a crowded street car, and rode for a long distance as a passenger, and was finally thrown off by the jolting of the car, it was held not to be negligence per se, when the passenger occupied this place upon the car without objection of the driver or conductor, but that the questions of negligence, and contributory negligence, under all the circumstances, taking into consideration the age and capacity of the lad, were for the jury. The carrier, however, is bound to higher' care and vigilance when the platform is crowded, in proportion as that place is more dangerous than a seat inside the car; and, in the event of an injury, this fact will be considered, in connection with all the circumstances of the case, in determining the responsibility of the carrier: Crissey v. Railway Co., 75 Pa. 83. But in the case of a passenger who is obviously and manifestly incompetent, either from extreme youth or other cause, to exercise any proper judgment or discretion for his own safety, a somewhat larger measure of duty may be said to devolve upon the conductor of a car, than under ordinary circumstances. In Pittsb. etc. Ry. Co. v. Caldwell, 74 Pa. 421, a little girl of five years of age, in company with another of eleven, was permitted to ride on the front platform of a street car : when she came near to her home she attempted to get off, and was injured. Mr. Justice Williams, in delivering the opinion of the court, said: “ It was gross negligence to allow children of that age to get on the platform and to ride there. If they got on without his (the conductor’s) permission, instead of consenting that they might ride on the platform it was the duty of the company to compel them to go inside, or to stop and put them off.” It must be conceded, of course, that he is not held to the exercise of critical skill or judgment; for the performance of his ordinary duties, in a crowded car, may give him little opportunity to observe closely the capacity or intelligence of a particular person in his charge. He is, in this respect, held only to the exercise of that degree of discrimination which a reasonably prudent and observing man would be expected to exercise under the circumstances. His duties require him to give his attention not only to those who may wish to board the car, but to those who wish to leave it, as well as to [93] such as remain. It is his duty to collect the fares, regulate the movements of the car, and generally to conduct the affairs of the company in his charge. He may, therefore, when the car is crowded and passengers are passing in and aut, have little chance to test with accuracy the intelligence or capacity of the individual passengers. But he is bound to give his undivided attention to his business, and if any person boards his car who is obviously incompetent to choose a place of safety, or whom he knows, or as an observing and prudent man ought to know, to be thus incompetent, it is his duty to exercise the highest care and vigilance consistent with the performance of his ordinary duties, for his safety: Phila. etc. Ry. Co. v. Hassard, 75 Pa. 367. The plaintiff, at the time of the injury, was a lad of eight years of age, and was held to the exercise of that degree of care and discretion ordinarily to be expected of a child of that age: Smith v. O’Connor, 48 Pa. 218; Crissey v. Railway Co., 75 Pa. 86. On the day of the occurrence, he had been visiting the St. John’s Orphan Asylum on Lancaster Avenue and Forty-eighth street. Returning home, he took the one-horse Heston-ville car, coming in from Fairmount, at Forty-eighth street, and rode to the depot at Forty-third street, where passengers are transferred to the defendant’s two-horse cars to be carried into the city. The plaintiff states that he had paid his fare on the Hestonville car, and that upon leaving that one, he had demanded a transfer ticket; that the conductor gave him none, but told him to get on the other car, and that he did as he was directed. He says the two-horse car was crowded, and there were probably eight or ten transfers; that the back platform was full, and that he with the other transfer passengers was directed “ to go up on the front.” He says, however, that he “ got upon the back platform first,” and “ went up in the front; ” that he “ went inside ” and “ went up in the middle—up in the car ”— “ went all the way up—up to the front of the car.” In this the plaintiff’s testimony differs from that of all his own witnesses, who say- that he boarded the car at the front platform, and remained there until the time of the injury. Even the conductor says he “ thinks he entered the car by the front platform,” but he states positively that he was within the car before the car started. It is highly probable that the little boy’s statement [94] is the correct one, as he could not well be mistaken as to a fact so likely to be remembered, and which he states so positively and circumstantially. Under the circumstances, he might well be supposed to know exactly what he did better than any of the passeng-ers or the conductor, who at this particular moment had no interest or concern in him or his movements. He was a small boy, and in the confusion caused by the entry of eight or ten passengers, might readily have worked his way through the crowded car without being observed. If the statement made by the plaintiff is true, and certainly he cannot complain if the facts are assumed to be as he himself states them, he was, in fact, inside the car when it started, as the conductor states he was; and it would seem that he voluntarily and without the knowledge of the conductor pushed through to the front platform, where his companion was and where the conductor found him at and immediately before the time of the injury. The jury found that the conductor had not put the plaintiff into the car at the front door, and this is probably true, but if by any means he had, in fact, entered the car, the conductor’s duty in this respect was done. The car had only proceeded a little more than a square from the depot, when the conductor, having collected the fares on the rear platform and in the body of the car, came forward, opened the wicket iir the front door, and demanded the fares of those on the front platform, among whom were these two boys. What then occurred is stated by the plaintiff’s witnesses substantially as follows: The conductor asked McCoy, the larger boy, for his fare; McCoy replied that he had paid his fare on the other car. The conductor said that was “ an old guy,” that he was “trying to steal a ride; ” that he must either pajj- his fare, or he would have to get off. This conversation was addressed to McCoy, but was within the hearing of the plaintiff. The conductor opened the door, and, as he did so, the plaintiff stepped with one foot down on the step of the car, and, holding to the iron support at the side of the car, attempted to get off backward. The driver caught him, and placed him back on the platform, saying, “ Don’t you get off, you will fall,” but almost immediately thereafter he repeated the act; and, although the driver again attempted to push him back, he was either thrown off, or jumped off, backward, receiving the injury complained [95] of. There is no evidence of a permission to ride on the front platform, except such as might be inferred from what occurred after the conductor came to the front door, and we think sufficient time did not elapse after that, nor was anything said or done to justify any fair or reasonable inference of the conductor’s permission to that effect. The whole occurrence appears to have been the affair of a few moments; almost at the instant when the door opened the injury occurred. Mrs. Doris says the time was not perceptible. If there was any evidence of negligence on the part of the conductor, it was certainly a mere scintilla. In his charge to the jury the learned judge entirely overlooked the plaintiff’s own statement as to how he came upon the front platform. The case was submitted to the jury exclusively upon the testimony of the other witnesses. The plaintiff was examined as to his competency, at the instance of his own counsel, and was found to be qualified. His testimony was taken in his own interest, and it seems reasonable that his statement and admissions under oath, at the trial, against his own interest, ought not to have been wholly ignored, or withdrawn from the jury. It may be that a party, when he takes the stand as a witness in his own behalf, is not absolutely concluded by his own testimony, but when he testifies in a circumstantial and detailed manner as to a fact peculiarly within his knowledge, and which if believed would prevent his recovery, his testimony is certainly not to be entirely disregarded upon the mere assumption that he may have been mistaken; especially is this true, when he is not recalled to-explain or retract the statement. If the plaintiff’s own testimony is true, and we 'cannot assume that it is either mistaken or false, then the sixth assignment of error should have been sustained; that is to say, there is not evidence from which the negligence of the company can fairly be inferred. The first and sixth of the defendant’s points were submitted upon the plaintiff’s statement of his own case ; and, whilst perhaps the defendant was not in strictness entitled to an unqualified affirmation, the answers and the charge tended to mislead the jury, and upon this ground The judgment is reversed, and a venire facias de novo awarded.