Pennsylvania R. v. Peters , 116 Pa. 206 ( 1887 )

Opinion,

Mb. Justice Stebbett:

Neither of the twelve specifications of error raises any question as to the sufficiency of the evidence to sustain the averment of negligence on which the action is grounded; nor does either of them involve any question as to the admission or rejection of evidence. Thej'- all, except the twelfth, relate exclusively to the subject of contributory negligence ; and, as to that, the only inquiry suggested is whether it was a question of law for the court or one of fact for the jury. The learned judge of the Common Pleas, holding it was the latter, refused binding instructions and submitted the question to the jury as one of fact under all the evidence. In so doing he rightly adhered to the well established rule that whenever the standard of duty shifts, not according to any fixed rule, but with the facts and circumstances developed at the trial, the question of negligence cannot be determined by the court but must be submitted to the jury ; Schum v. Penn. R. R. Co., 107 Penn. St. 8, 12; and Penn. R. R. Co. v. Coon, 111 Penn. St. 430, 440. Negligence is the absence of care according to the circumstances, and is always a question for the jury when there is a reasonable doubt as to the facts, or as to the inferences to be drawn from them. When the measure of duty is ordinary and reasonable care, and the degree of care varies according to circumstances, the question of negligence is necessarily for the jury: Penn. R. R. Co. v. White, 88 Penn. St. 327, 333. It is impossible to formulate a fixed rule of duty applicable to all cases. A course of conduct which under certain circumstances may be justly regarded as the exercise of ordinary care, would, under other circumstances, be gross negligence. The opportunity for deliberation and action, the degree of danger, and many other considerations of like nature, affect the standard of care that may be reasonably required in a particular case. While this is the general rule there are, of course, exceptional cases, in which the measure of duty is determinate — the same under all circumstances, as for example the inflexible rule of duty which requires persons, about to cross a railroad track, to stop, look and listen ; but, the case at bar is not within any of the recognized exceptions to the general rule, and hence there was no error in submitting the question of contributory negligence to the jury.

The evidence tended to prove substantially the following state of facts : The plaintiff, a large and corpulent man about seventy years of age, took passage on the train for Port Matilda station. The cars were well filled with passengers, but he found a seat at the forward end of the passenger compartment of the smoking car, about thirty-five feet from the door through which it was necessary for him to make his exit. As soon as the train stopped at Port Matilda he arose and made his way through the cars as speedily as possible, but when he reached the door he was delayed by a group of passengers who had boarded the train as soon as it stopped and before those desiring to leave had either time or opportunity to do so. He was obliged to push his way, as best he could, past those who obstructed the doorway and platform. When he reached the last, or next to the last step leading down from the platform, he discovered the train had commenced to move. The impetus acquired in leaving the car rendered it difficult, if not impossible, for him then to retrace his steps. Testifying as to his situation, when he first discovered the train was in motion, he says: “ Then I could not take myself back again.” In the language of one of the witnesses, “ he seemed when he got to the last step as though he was going to stop; he stepped as though he was afraid to go, but by that time he had got too far and stepped right off the end.” The result was that he was thrown upon the ground'and sustained the serious injuries complained of. The train was held at the station an unusually short time —about twenty-five or thirty seconds. Those who wished to enter were permitted to do so before reasonable time or opportunity was allowed for passengers to safely leave the car.

The evidence was such as to justify the jury in finding these and other facts, warranting the conclusion of negligence on the part of the company defendant’s employees and negativing the allegation of contributory negligence. In other words, the subjects of inquiry fairly presented by the evidence were defendant’s negligence, on the one hand, and contributory negligence of the plaintiff on the other. Both of these were questions of fact exclusively for the consideration of the jury, and as such they were submitted in a clear and satisfactory charge. The controlling facts, as settled by the verdict, are that the injuries sustained by plaintiff resulted from the negligence of defendant’s employees in starting the train before he had sufficient time and opportunity to alight in safety, and not from his own carelessness in leaving the car while it was in motion. For injuries thus sustained by a passenger the carrier company is undoubtedly liable : Penn. R. R. Co. v. Kilgore, 32 Penn. St. 292.

It is unnecessary to notice each assignment of error specially. The last specification is without merit. The jury could not have been misled by the mistake of the court in misnaming the witness to whose testimony reference was made. The remaining specifications all relate to the subject of contributory negligence, which, as we have seen, was properly submitted to the jury as a question of fact, under all the evidence. There is nothing in any of the specifications of error that would warrant a reversal of the judgment.

Judgment affirmed.