Smedley v. Hestonville, Mantua & Fairmount Passenger Railway Co. , 184 Pa. 620 ( 1898 )

Opinion by

Mb. Justice Gbeen,

There could not be any doubt that the accident which caused the plaintiff’s injury resulted in some way from the condition of the track at the place where the car left the track. It was shown by abundant testimony, and not at all contradicted, that at the place of the accident, the bed of the street had been dug out for the purpose of changing the track from the old horse car system to the kind of track required for the new electric system. New rails were being laid and, for the purpose of continuing the travel while the work was going on, the old rails and the new were kept in a condition of temporary union at the ends, so that the cars could pass from the rails of the one system to those of the other. At the very moment of the accident the car had passed from the new rails and was on the old rails. There was quite a depression in the bed of the road caused by the excavation which had been made, and into this depression or excavation the front wheels of the car dropped with sufficient force to throw the passengers witli considerable violence from their positions on the seats. The plaintiff’s head was dashed against the fare box or the side of the car, and she received severe contusions and lacerations of the head and face. That her injuries were very serious was fully proved by the medical testimony. As a matter of course the plaintiff was in no degree responsible for the accident, either by way of contributory negligence or in any other manner. She was a passenger who had paid her fare and was entitled to safe conduct to her destination. There were but two questions in the case, one as to the defendant’s negligence and the other as to the measure of damages. The learned trial judge left both these questions to the jury with careful and correct instructions, and with adequate cautions against excessive damages. It was claimed for the defense that the accident was the result of an inevitable event which could not have been foreseen or provided against. The court left this question to the jury on all the evidence, charging that the defendant was not liable for extraordinary events which it could not foresee or prevent. The charge was absolutely correct on this subject, and the defendant was allowed every possible opportunity to establish this defense. The jury, by their verdict, found for the plaintiff, and a reading of the testimony convinces us that they found correctly. We can discover no room for any theorj^ that the accident was due to an inevitable event which could not have been foreseen or prevented. It was manifestly due to some defect in the track which was not explained, but for which the defendant was clearly responsible. We think the learned court was not quite correct in the answers given to the fifth and sixth points of the defendant, in saying that they were refused because they concluded with the phrase “ that the verdict should be for the defendant.” We do not think the points asked a binding instruction, but only a direction that if the hypothetical facts stated in the points were found by the jury, then the verdict should be for the defendant. But the rule of duty stated in the points was not sufficiently strict when applied to carriers of passengers, and therefore the points could not have been affirmed as they stood. It requires more than mere reasonable care and prudence to relieve carriers of passengers from their legal duty of safe carriage. The refusal of the points, therefore, did no harm.

In regard to the question of damages we see no error in the charge. The court instructed the jury that they could only give damages that would compensate the plaintiff for her in- ■ jury, “ allowing her damages for the pain and suffering which she has undergone in the past and is likely to undergo in the future, and any permanent injury which you may deem she has suffered, and also any expense which she has been put to in the way of obtaining relief.” There was nothing wrong in this. It is rather within than beyond the instructions which are generally given in cases of this character. Clearly the charge on this subject was not erroneous, as against the defendant.

The assignments of error are all dismissed.

Judgment affirmed.