Palmer v. Warren Street Railway Co. , 206 Pa. 574 ( 1903 )

Opinion by

Mr. Justice Bbown,

Mrs. Kate Palmer was a passenger on an electric car of the defendant company. As it approached an up grade a car with a trailer attached was seen descending and coming towards it on the same track. The brake chain on the descending car had broken, and the motorman was unable to control it. The motorman of the ear on which the plaintiff was riding, seeing that a collision was inevitable, stopped his car, and, having reversed the current, started it backwards. The other cars were gaining on it, until it seemed that the collision could not be avoided, and a number of the passengers on the car with Mrs. Palmer, including herself, jumped from it just before the cars collided. For the injuries sustained in jumping from the car this suit was brought. The case was submitted to the jury under what the appellants regard as erroneous instructions, and the verdict having been for the defendant, this appeal was taken.

This real error complained of is the trial judge’s instruction to the jury that there was no presumption of the defendant’s negligence. Upon this point he said, in his general charge: “ Now, gentlemen of the jury, the first question which we subxnit to you is this: From all of the evidence on the part of the plaintiffs and on the part of the defendant, was the defendant guilty of any negligence in the matter ? If the defendant was not guilty of negligence then there can be no recovery. Where an accident happens and an injury takes place by a collision and a passenger is injured in the collision, there is a presumption of negligence; and had Mrs. Palmer remained on the car and had been injured in the collision which occurred, there would have been a presumption of negligence on the part of the company, which the company could rebut by testimony.” He added in the same connection : “ But in this case we say to you, it is incumbent upon the plaintiffs to show negligence and convince you of negligence.” This instruction, that there was no presumption of the company’s negligence, was repeated in the court’s answers to plaintiffs’ first and defendant’s third points.

If Mrs. Palmer had remained on the car and been injured by the collision, no one would think of questioning the presumption of the defendant’s negligence. The collision itself, without more, would have been evidence that some one in the employ of the company had blundered or neglected his duty. As a matter of fact, the collision was due to the breaking of a brake chain; but the case was within the unbending rule, applicable to railroad and street passenger railway companies alike, that, where a passenger on a ear is injured, without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of rebutting it: Laing v. Colder, 8 Pa. 479; Sullivan v. Philadelphia & Reading R. R. Co., 30 Pa. 234; Meier v. Pennsylvania R. R. Co., 64 Pa. 225; Philadelphia & Reading R. R. Co. v. Anderson, 94 Pa. 351; Fleming v. Pittsburg, etc., Ry. Co., 158 Pa. 130 ; Clow v. Pittsburg Traction Co., 158 Pa. 410; Dixey v. Philadelphia Traction Co., 180 Pa. 401; Kepner v. Harrisburg Traction Co., 183 Pa. 24; and it is immaterial that the collision was not due to any defect in the ear on which the plaintiff was riding, or the machinery connected with it, but to a broken appliance on the car that ran into it; for the presumption of the defendant’s negligence arises not only when the injury is caused by a defect in the road, cars or machinery, or by want of diligence or care in those employed, but by any other thing which the company can and ought to control as a part of its duty to carry the passenger safely: Meier' v. Pennsylvania R. R. Co., supra. The other thing here which was under the control of the company was the chain that broke on another car which ran into the one on which the plaintiff had been a passenger.

But the plaintiff was not bound to wait for the collision. It was rather for her, under the instinct of self-preservation, to try to escape from its danger, and, in seeking to avoid it, she is not necessarily chargeable with neglect of her own safety in exposing herself to another risk by jumping from the car. The company had confronted her with the peril from which she would have escaped, and it is and ought to be responsible to her for whatever naturally followed. In trying to save herself she was, at the same time, unconsciously trying to save the company from the consequences of its negligence, and of her effort to do so it ought to be the last to complain, unless it is manifest that she acted rashly and imprudently. “ In such a case, the author of the original peril is answerable for all that follows. ... If, therefore, a person should leap from the car under the influence of a well grounded fear that a fatal collision is about to take place, his claim against the company for the injury he may suffer, will be as good as if the same mischief had been done by the apprehended collision itself. When the negligence of the agents puts a passenger in such a situation, that the danger of remaining on the car is apparently as great as would be encountered in jumping off, the right to compensation is not lost by doing the latter; and this rule holds good, even where the event has shown that he might have remained inside with more safety: ” Penna. Railroad Company v. Aspell, 23 Pa. 147. To this we can add nothing, except that a well grounded fear that a collision is about to take place, which will result in fatal or even serious injury to the passenger, is a justification to him to leap from the car; and the presumption of the common carrier’s negligence is not confined to the case of injuries resulting from actual collision, but extends to those caused by an effort to escape it, when made on a well grounded belief that it will occur. The collision itself would admittedly be due to the presumed negligence of the company, and to no other cause can be attributed the manifest danger of it, from which the plaintiff in this case attempted to escape. The court’s instructions, therefore, should have been that there was a presumption of the company’s negligence, and that there was no burden upon the plaintiff to prove it until the defendant had first rebutted the presumption of it.

In affirming defendant’s fifth point, the court fixed too low a standard for the duty of the railway company. More is required of a common carrier than mere reasonable precaution against injuries to passengers and care that its cars and appliances are to be measured by those “ in known general use.” While the law does not require the utmost degree of care which the human mind is capable of imagining, it does require that the highest degree of practical care and diligence shall be observed that is consistent with the mode of transportation adopted; and cars and appliances are to be measured by those which have proved by experience to be the most efficacious in known use in the same business. The rule upon this subject, as laid down in Meier v. Pennsylvania R. R. Co., supra, and which should have been followed by the court in answering the point, is: “ The utmost care and vigilance is required on the part of the carrier. This rule does not require the utmost degree of care which the human mind is capable of imagining; but it does require that the highest degree of practical care and diligence should be adopted that is consistent with the mode of transportation adopted. Railway passenger carriers are bound to use all reasonable precautions against injury of passengers; and these precautions are to bo measured by those in known use in the same business, which have been proved by experience to be efficacious. The company is bound to use the best precautions in known practical use. That is the rule; the best precautions in known practical use to secure the safety of the passengers ; but not every possible preventive which the highest scientific skill might suggest.”

No error was committed in saying that the fact that there was a car coming and going on the same track was not in itself evidence of negligence by the defendant company, and the fifth assignment is not sustained. The court’s instructions should have made it clear that, if the jury should find the plaintiff acted from a well grounded fear of imminent danger, she was not guilty of contributory negligence in jumping from tbe ear. In tbe portion of tbe charge complained, of in tbe sixth assignment, tbe jury might have understood, that, unless there was actual danger, and she jumped to escape it, she would be guilty of negligence. As tbe instruction upon this point was not clear, tbe sixth assignment is sustained. In sustaining tbe seventh, we need only say that the question asked Dr. Stewart was proper and should have been allowed.

All of the assignments except the fifth having been sustained, the judgment is reversed and a new trial awarded.