Snow Et Ux. v. Phila. Rapid Transit Co. , 1924 Pa. Super. LEXIS 256 ( 1924 )

Argued October 21, 1924. Mrs. Snow, a passenger occupying a seat in defendant's street car on a winter night, was injured by the explosion of a bottle of coffee which the motorman had put on the radiator under the seat. The court submitted to the jury whether the motorman was negligent in placing the bottle there and the jury returned verdicts for Mrs. Snow and her husband. Judgment for defendant n. o. v. was entered on the ground that there was no proof that the "motorman's act was done within the scope of his agency and authority on the defendant's business." That conclusion is here for review.

As she was a passenger in the car, the contract of transportation required defendant, though not an insurer, to exercise the highest degree of care and diligence in protecting her while in the performance of the contract. The explosion created no presumption of negligence. But the evidence is that the employees in charge of the car were in default; the motorman placed the cause of the mischief, where, as the jury found, mischief would result, and the conductor knew of the motorman's act. Mrs. Snow testified "As soon as the people smelled coffee some one said "coffee" and the motorman heard it. When some one said "coffee" he stopped the car and came in and just swore at me for about five minutes for making a fuss over his bottle of coffee being exploded, and the conductor came in and said it was the motorman's coffee." Whether or not the explosion was to be expected as a result of placing the bottle on the radiator is of course settled by the verdict. It is clear then that defendant's employees did not conduct the transportation of plaintiff with the degree of care required by the law. The subject was so fully considered by President Judge RICE in Atherholt v. Motor Co.,27 Pa. Super. 141, where the relation of passenger and carrier existed, and in Greb v. Penna. R.R. Co., 41 Pa. Super. 61, where that relation was treated as ended, that nothing need now be added; see also Spagnol v. R.R. Co., 279 Pa. 205, 209; Gaussman v. Ry. Co., 55 Pa. Super. 542; Diffenderfer v. R.R. Co., 67 Pa. Super. 187; Durando v. Transit Co., 80 Pa. Super. 65.

In each appeal, the judgment is reversed and the record remitted with instructions to enter judgment for the plaintiff on the verdict.