Montalini v. Pennsylvania Co.

Opinion by

Mr. Justice Walling,

This is an action for personal injuries to a passenger. Defendant has a four track railway system extending westwardly from Pittsburgh along the north bank of the Ohio river, on which, about twelve miles out of the city, Glen Osborne Station is located, the depot buildings being on the north side of the tracks. On the south side opposite the depot there is a platform some three hundred feet long for the accommodation of eastbound passengers; on it there is a shelter shed. The eastbound and westbound tracks are separated by a fence. Mrs. Montalini, herein called the plaintiff, took passage on one of defendant’s eastbound trains at Ambridge for her home in Glen Osborne. In alighting therefrom plaintiff was injured by falling on the platform. She had in her arms a four months’ old child and a small package. The accident happened about 4: 30 p. m. The train consisted of an engine and four coaches, and had stopped to receive and discharge passengers. The conductor knew that plaintiff intended to leave, the train at Glen Osborne. Her testimony was to the effect that as she came down the car steps and was about to pass to the platform the train started forward with a sudden jerk, as the result of which she was thrown and injured. She was corroborated to some extent by the testimony of four other witnesses, who claim to have seen the accident from a distance. Much doubt was thrown upon the evidence of some of these Avitnesses.

For the defense six or seven witnesses, seemingly credible, testified that, after the train had started and while it Avas in motion, plaintiff deliberately left the car platform, walked doAvn the steps and jumped off. There was some evidence to the effect that she had not reached the car platform when the train started, and that a gentleman standing thereon tried to restrain her from attempting to alight. Fortunately a young man caught the child and saved it from harm.

Plaintiff sustained quite serious injuries, including a fracture of the fifth dorsal vertebra. The evidence tended to show that she had not and probably never would fully recover. The case turned largely on questions of fact, all of Avhich were submitted to the jury. Defendant took a general exception to the charge and bases thereon thirteen assignments of error. The first complains of the inadequacy of the charge as a whole, and the others of different portions thereof. A careful examination of the charge fails to disclose any reversible error. It substantially covers the case and is not inadequate. The first exception' relating thereto1 is defective in failing to quote the entire charge. See Supreme Court Eule 37. Where the entire charge is the subject of an exception, it should be set out in full: Udderzook v. Harris, 140 Pa. 236; Morgan v. Gamble, 230 Pa. 165; although appearing elsewhere in the paper book: Gilmore v. Pittsburgh, Va. & Charleston R. R. Co., 104 Pa. 275.

Several assignments relate to general instructions of the court to the effect that it is the duty of a railroad company as the common carrier of passengers to use the highest degree of care, and to stop its train for such length of time as to give the passengers a reasonable opportunity to alight; and that to prematurely start the train, with a sudden jerk, while a passenger is in the act of alighting therefrom, which act is or should be known to those in charge of the train, is negligence on the part of the carrier, which negligence is the want of the required care under the circumstances; and that the first question is, whether under all the facts and circumstances the defendant was guilty of negligence which was the sole cause of the plaintiff’s injury. And further if plaintiff did not exercise proper care and it wa’s through her negligence, or she contributed in any manner to this accident, then she cannot recover; that to voluntarily attempt to get on or off a moving train is negligence; and if plaintiff attempted to alight from the train, after it had started, she was herself to blame and cannot recover no matter how guilty the defendant may be of negligence. Therein we see no just cause of complaint. And the fact that the judge greatly enlarged upon such instructions and called the attention of the jury to the evidence in connection therewith was not error.

Plaintiff testified that as a result of the accident she was confined to her bed for three weeks, during which time she suffered pain continuously and could not sleep at all. In view of this there was no reversible error in that part of the charge embraced in the ninth assignment, to the effect that, as matter of common knowledge, pain might be so intense as to disable a person from labor, etc.

There was no error in what the court said as to the present worth of future damages: Irwin v. Penna. R. R. Co., 226 Pa. 156; especially as defendant failed to ask for more specific instructions: Fern v. P. R. R. Co., 250 Pa. 487; Saunders v. Pittsburgh Rys. Co., 252 Pa. 79.

In fact in Bostwick v. Pittsburgh Eys. Co., 255 Pa. 387, it is held that it is not error for the trial judge to decline to instruct the jury as to the present worth of damages for future pain and suffering. As the husband’s judgment is for only .$341, a sum not in excess of what the evidence justified for his damages previous to the trial, it is unnecessary to further consider this branch of the case.

The trial judge’s comments upon the evidence were entirely fair, and the record discloses nothing done by him to the prejudice of the defendant, unless it might be in the discretionary matter of refusing a new trial, and that was doubtless influenced somewhat by the fact that the case had been tried twice.

The assignments of error are overruled and the judgments are affirmed.