Stager v. Ridge Ave. Pass. Ry. Co. , 119 Pa. 70 ( 1888 )

Opinion,

Mr. Justice Clark :

This suit was brought by Harry W. Stager, in his lifetime, to recover damages for a personal injury which, it is alleged, he sustained through the negligence of the company’s servants, on January 7, 1884, which injury afterwards resulted in his death. The administrator of his estate has been substituted in the action, and the cause came to trial upon an issue formed between the plaintiff’s legal representative and the company.

It is admitted that Stager attempted to board the car at the front platform, whilst the car was in motion. He succeeded in getting on the lower step with one foot only, and before he could establish himself there, a sudden motion of the car forward threw him off, and he fell under the wheels. It is not definitely shown at what rate the car was moving at the time of the occurrence. Stager had given the conductor a signal to stop, and as the car approached the crossing it “ slowed up; ” but before it had fully arrived at the place where the stop was to be made, and whilst it was still in motion, he attempted to enter by the front platform, with the result stated. The evidence seems to show that the car was moving quite slowly, but it did not stop.

We are not prepared to say, as matter of law, that the attempt of a passenger to board a street car, whilst it is in motion, is to be considered an act of negligence, no matter what may be its rate of speed. A car may be moving so slowly that there would be no apparent danger whatever in attempting to enter it; so slowly that a person of reasonable prudence, in the exercise of ordinary care, would not hesitate to make the effort. It would be a hard rule that would hold a passenger guilty of culpable contributory negligence in such a case. In all cases of doubt, the question must be left to the jury to say, under all the circumstances, whether the danger of boarding the train when in motion -was so apparent as to have made it the duty of the plaintiff to desist from the attempt: Johnson v. Railroad Co., 70 Pa. 857. Nor can we say that the act of entering the car by the front platform, when the car was in motion, regardless of its rate of speed, was an act of negligence per se. Passengers generally entered the cars of this company by the rear platform, but it seems, although there was no invitation to do so, they were permitted to enter on the front platform also; there was no known rule of the company against it. The fact that the attempt was made at the front platform is undoubtedly a circumstance to be considered in connection with the fact that the car was at the time in motion; yet we are not clear that either one of these circumstances, or both of them together, can, as matter of law, be held to constitute negligence. There are cases, of course, where the act of jumping either on or off a rapidly moving ear may be said to be negligence per se, as in Penn. R. Co. v. Aspell, 23 Pa. 147, and McClintock v. R. R. Co., 20 W. N. 133; but in a case like this, where a street car is said to have “ slowed up slow,” as it usually does for a man to get on, “ so that any one could get on handy,” etc., the question becomes one of doubt, a definite sentence cannot well be pronounced upon it, and the question becomes one for the jury upon a full consideration of the whole case to determine the fact of negligence.

But the plaintiff, in order to recover, must show that the personal injury received by Harry W. Stager was the result of some act of negligence on the part of the company or its servants. The mere fact of the injury, under the circumstances of this case, is not enough; the injury was received before the passenger had placed himself in the carrier’s hands. It is only when the injury occurs from agencies peculiarly within the defendant’s power that he can be* presumed without proof to have acted negligently: Whar. on Neg., 661. The burden of proof rested with the plaintiff, and unless some act of negligence on part of the company or its servants is shown, the cause of action is not made out. It is said that when Stager landed upon the first step of the car, there was a sudden start or jerk which threw him off, and that the injury resulted from this rather than from his attempt to get on the car whilst it was still in motion. But it has not been shown that this sudden movement of the ear was in any way attributable to the driver. It is suggested that he may have removed the brake or applied the whip, but there is not the slightest proof that he did either. Stager was on the step at the side of the driver, and he does not pretend to say that the driver did anything to produce this result. It was a cold morning in January; the track was probably covered with ice; the horses may have been impatient from the cold, and the quick motion of the car forward might just as well be attributed to either or both of these causes as to the action of the driver. The truth is, however, that there is not the slightest proof on the subject ; there was nothing in the evidence from which any well-founded inference could be drawn as to which of the several causes mentioned the' sudden motion of the car was to be attributed ; and it is plain that the jury would not be justified in determining the fact from mere conjecture. Facts are for the consideration of the jury only when there are facts to consider, and neither the court nor the jury in such a case was justified in making a guess as to the cause of the sudden starting of the car.

In this aspect of the case, it is unnecessary for us to decide what would have been the measure of the plaintiff’s recovery, in view of the fact that the father has also brought an action to recover damages for the death of his son under the act of April 26, 1855. We are of opinion that the learned court below was right upon the grounds stated in his opinion in entering the nonsuit, and therefore

The judgment is affirmed.