Thorne v. Philadelphia Rapid Transit Co. , 1912 Pa. LEXIS 885 ( 1912 )

Opinion by

Mr. Justice Stewart,

According to the testimony adduced in support of plaintiff’s claim, the accident which resulted in her injuries occurred under the following circumstances. The plaintiff intending to take a southbound car, stood on the northwest corner of an intersecting street, at a public crossing which was a flagging point. While there some three or four southbound cars, with passengers occupying the front platform of each, passed without stopping. With a view to getting accomodation on the next car by approaching it at the rear, plaintiff moved northward along the pavement about the length of a car. When she saw a car coming which she thought was about to stop at the crossing, she advanced from the . pavement toward the track, intending to enter upon the car at the rear. While waiting for the car to stop she stood upon a pile of dirt a foot or more in height, and very close to the track. The car stopped, but not long enough to permit the plaintiff to board it; and when it again started plaintiff turned to get further from the track. As she did so the dirt pile on which she stood gave way and carried her foot on the track where it was run over by the wheel of the car. In making repairs and alterations to its track at this point the defendant com* pany had excavated for a considerable distance along its line and had cast the dirt along the street. This street obstruction, says one of the witnesses, continued along five squares, the dirt being piled to a height of from eighteen, inches to two feet leaving no place, clear except at the «public crossings. The learned trial judge was of opinion that the plaintiff in standing upon the ridge of dirt to await the car, was guilty of contributory negligence as a matter of law. In this view of the case we cannot concur. The evidence does not disclose a disregard by the plaintiff of any fixed standard of duty or care. It may have been negligence on her part to occupy the position she did before she fell; but that was a. question for the jury to determine from all the facts in. the case. The car was of a pattern that invitéd passengers to enter at either end. It does not appear that the position the plaintiff occupied was too close to the tracks for safety under ordinary conditions; nor does it appeár, apart from the accident itself, that any particular danger attended the standing upon a pile or ridge of dipt such as was this. The fact that plaintiff attempted a crossing to the car where she saw she must encounter this particular ridge of dirt, whereas she knew that she would have encountered none had she advanced from the street on the public crossing in the front of the ear, is a circumstance calling for Consideration; but whether it was negligence in her so to do depends on whether .such accident as here befell her should reasonably have been anticipated, that is, the giving way or. yielding.of the dirt which was the immediate and proximate cause of plaintiff’s fall and injury. Whether it be the negligence of a plaintiff or defendant that is the subject of inquiry, the same rule governs in either case. Where ■the standard of care is fixed, and the standard of duty is defined by law and is the same under all circümstances, the failuré to observe it may be declared negligence by the court; but when the státídárd shifts with the circumstances of the case, it must be submitted to the jury to determine What it is, and whether it'has been observed: West Chester and Phila. R. R. Co. v. McElwee, 67 Pa. 311.

The appeal is from the refusal of the court to take off the nonsuit. The assignment of error is sustained, and the judgment is reversed with a venire facias de novó.