Goehring v. Beaver Valley Traction Co. , 222 Pa. 600 ( 1909 )

Opinion by

Me. Justice Pottee,

The plaintiff in this case was employed as a night policeman for the borough of Rochester, but instead of being paid by the borough he received his compensation from business men and firms, who were presumably interested in securing police protection. Among other services which he rendered was that of keeping a certain waiting room of the traction company clear of loafers and disorderly persons, and he was also expected to respond whenever called upon by the conductors to aid in preserving order upon the cars of the defendant company. For his services to the defendant in these respects, it paid him $4.00 a month, and gave him the right of free transportation over all its lines. His earnings as a police officer from other persons and firms whom he served during the same period were apparently more than ten times what he received from the defendant company. Plaintiff testified that on the night of the accident he was asked by its conductor to board a car running, across the river into the borough of Monaca, and that he responded to the request. That at first he took a seat inside the car, but was directed by the conductor to go to the front platform with the motorman. He made the trip to the terminus and back, and while he was upon the front platform and as the car was rounding a curve with what was charged as great and excessive speed, it was thrown from the track, and plaintiff was very severely injured. At the trial of the case it was contended on the part of the plaintiff that he was merely a passenger at the time of the accident, having at the time no police duties to discharge, and that he was under his right to free transportation, merely riding back to the point at which he had entered the car. On the other hand, the defendant company contended that the plaintiff was then acting in the capacity of an employee. This disputed question of fact as to the status of the plaintiff was left to the determination of the jury, and properly so, we think. It is clear from the evidence that upon the return trip of the car there was no disorder and no occasion for interference by the plaintiff in his capacity as an officer. He was entitled to free transportation as part of the compensation for his services. McNulty v. Penna. R. R. Co., 182 Pa. 479, affirms the doctrine that “a person employed by a railroad company at a certain amount of wages per day and free transportation to and from his home is to be regarded as a passenger while traveling to his home after his day’s work is done.” In the present case, as that question was carefully submitted to the jury for their determination, the verdict of the jury must be accepted as establishing the fact that the plaintiff was a passenger at the time of the accident; and we know of no principle of law which stands in the way of such a finding. We think the question was properly regarded as one of fact for the jury rather than one of law for the court, and that in this respect the case is within the principle of Wilkes v. Buffalo, etc., Ry. Co., 216 Pa. 355.

On the question of plaintiff’s contributory negligence, the jury were instructed that there could be no recovery if the plaintiff voluntarily took a place upon the front platform, when there was room for him inside the car. But the undisputed evidence is that the conductor directed plaintiff to go out upon the platform, telling him that the motorman wanted to talk to him. It must be remembered that under the circumstances the position of the plaintiff was not that of the ordinary passenger. He was a peace officer, engaged by the defendant company to aid the men in charge of the car in preserving order whenever the need should arise. He had also the right of free transportation at all times, whether actually discharging police duties or not. Under such circumstances the rules which would govern an ordinary passenger could not reasonably be applied to the conduct of the plaintiff. He would naturally have occasion for communicating with the men in charge of the car, as ordinary passengers would not. The trial judge could not properly have ruled as matter of law that the plaintiff was guilty of contributory negligence in going from the inside of the car to the front platform in compliance with the direction of the conductor.

Our examination of the record in this case has satisfied us that the questions of whether plaintiff was at the time of the accident a passenger or an employee, the negligence of the defendant, and the contributory negligence of the plaintiff, were all properly submitted to the jury, in a very careful and impartial charge, of which the appellant has no just reason to complain.

The assignments of error are overruled, and the judgment is affirmed.