Keator v. Scranton Traction Co.

Opinion by

Me. Justice Dean,

Appellant operates two lines of electric passenger cars running out from the city of Scranton, one north, the other south; the terminus of the one running north was at the comer of Penn and Lackawanna avenues; of that running south, in front of the Wyoming House, a block distant; the company provided a continuous passage on both lines by transfer tickets. On August 30, 1894, Susan Keator, plaintiff, got upon a car of- the north line' to go to Mountain Lake, a pleasure resort on the south line. She paid her fare, and when the car stopped at the comer of Penn and Lackawanna avenues, got off; before she left the car, the conductor gave her a transfer ticket which read: “ Good upon next south side car within thirty minutes from nine o’clock.” She then walked to the starting point of the south side car in front of the Wyoming House. While standing on the pavement, the trolley car pulled up and stopped; as it would proceed to its destination in an opposite direction, the motorman attempted to change the trolley pole to the other end of the ear; in doing so, it broke, and a piece of it struck Mrs. Keator on the head and shoulder, inflicting a severe injury; when stricken, she had moved from the pavement to a point midway between the curb and ear; the distance from car to curb was about ten feet; at the time, the seats had been reversed in the car, which was an open one, and she was approaching it to get on. On the trial in the court below, two questions arose, one of law for the court, and one of fact for the jury. On the undisputed facts, was plaintiff, at the time of the injury, in a legal sense, a passenger on defendant’s road ? If so, then she was entitled to recover, for defendant adduced no evidence of that high degree of care, such as is incumbent on a common carrier of passengers, when one has been injured by any of the machinery or attachments of the car or other vehicle in which the passenger is being transported. If she was not a passenger then did the company exercise that ordinary care in manipulating its machinery which it owed to others occupying and using a common highway ? The court decided the first question in favor of plaintiff, but to save a second trial, if such ruling should be error, it submitted the evidence bearing on the second question to the jury, directing them to make a sp'ecial finding as to that branch of the case. On this question, the jury answered, that defendant had not exercised ordinary care in changing the trolley, consequently there was a finding for plaintiff on both grounds; her damages were assessed at $4,670.83. Afterwards, in a very full opinion filed, the court overruled a motion for a new trial, and entered judgment on the verdict.

The ease turns here, on whether the court below was correct in holding on the undisputed facts, that plaintiff, at the time she received the injury, was a passenger. We think grave injustice might have been done defendant by the method of trial, if its liability had depended on the answer of the jury to the second question. The court pointedly decided and explicitly announced, as matter of law, that defendant owed to plaintiff, as i passenger, extraordinary care, and then submitted to them the evidence, to determine whether it had exercised towards her, as a traveler on the highway, ordinary care. A jury of lawyers would doubtless have clearly perceived the distinction so perspicuously pointed out by the court; but with the large majority of laymen, it would not be comprehended, and if comprehended, would in many cases not be heeded. In considering the second question, the jury would start with the conviction that defendant had violated its lawful duty to its own passenger, and probably, therefore, had neglected a less rigorous one to the general public. In the face of the law, as declared by the court on the first question, a corporation’s chance for a favorable verdict on the second, was a very remote one with the ordinary jury. We would hesitate to sustain the court’s method of reaching a verdict, however commendable the motive, if the correctness of the judgment depended on the jury’s answer to the second question; defendant was entitled in fairness to an answer on the second from a jury, unprejudiced by a decision against it on the first.

But, taking the undisputed facts, was the plaintiff’s relation to defendant at the time of the injury that of a passenger? If so, then the burden was on defendant to show it had exercised a high decree of care towards her because of that relation. It offered no evidence as to the strength of the trolley-pole; whether it had been subject to inspection at any time; whether age and constant use had destroyed the tenacity of its fiber; or even whether it was ever safe for its purpose. The fact stood out undisputed, that in manipulating the pole in the usual way, it broke and injured plaintiff. Unquestionably, defendant failed in its duty to her, if she was a passenger. It must be conceded, we think, that the transfer ticket, on its face, was an undertaking to carry her from the point where the car started, in front of the Wyoming House, to her destination on the south side line. She was not a passenger, while on the sidewalk going from one point to the other. , Thus far, the construction of the carrier’s contract, from the undisputed circumstances and the ticket, is palpable. When did the obligation of the contract end with regard to her at this interval? It must be borne in mind, as so clearly pointed out by the learned judge of the court below, that the injury to her was from a defect in an indispensable attachment of the very vehicle in which defendant had undertaken to carry her. It was not a side-tracked car, or an unused one, which she bad no right to get on, but, in the common pirrase, it was “ her car,” that had been provided by defendant to carry her to her destination, which caused the injury. There is no definition of the duty of defendant to plaintiff which fits the facts of this case. That cited and relied on by appellant, 1 Fetter on Carriers of Passengers, sec. 283, applies to a different state of facts. The author says : “ When he (a passenger) steps from the street-car to the street, he ceases to be a passenger when he alights. The street is in no sense a passenger station for the safety of which the street railway is responsible. When a passenger steps from a street car upon the street, he becomes a traveler upon the public highway, and terminates his relation and right as a passenger, and the railway company is not responsible to him as a carrier for the condition of the street, or for his safe passage from the car to the side-walk.” And again, on page 229 of same book, “ the special duty of a carrier to exercise a high decree of care begins only when, by coming upon his premises, or in the act of entering his vehicle, the actual relation of the passenger to the carrier is assumed.”

The easés cited by the author amply sustain the text, but not one of them is a case where the passenger was injured by a defective attachment to the vehicle from which the passenger alighted, or which he was about to enter. Unquestionably, the carrier is not answerable for the condition of the highway on which the passenger alights, or from which he stands or steps before entering the car; nor is it answerable for the conduct of third persons who, by neglect, cause injury in such situation to the passenger. But in the case of these particular conveyances, electric cars, necessarily and immediately, on the car stopping at the end of the route the motorman proceeds to reverse the trolley; ordinarily, this is attended with no danger to any one ; the act is performed while some of the passengers have alighted and are on the sidewalk out of reach of the trolley-pole; some are between the curb and the car, and probably some yet in the car. Can it be argued with any plausibility that, in changing the trolley-pole, the carrier owes no duty to its passengers who are not out of reach of danger from a part of the very vehicle in which they have been carried ? Clearly, the duty to the passenger, under such circumstances, with that kind of vehicle, does not end the moment the passenger’s foot touches the street. And so with the next starting car: She has traversed the sidewalk, and is on the pavement in front of the Wyoming House; the car moves up to the end of the line in front of her and stops; she steps outside the curb and moves towards it; the seats are being reversed; two or three passengers are already in the car; when within four or five feet of it she is struck by the broken pole, which of necessity is being changed. Why is she within reach of this peril? She is not a traveler on the highway, is not a resident who desires to cross the street; is not a mere spectator who, from curiosity or idleness, stands in that situation with reference to the car; she is there because, under the stipulations of the contract then in her possession, she has a right to take passage on that particular car at that point. In no sense is she one of the general public on the highway; she is at that point, at that particular juncture, because she could not receive the consideration of her contract, a passage to Mountain lake, if she were anywhere else. If it were not for her contract, she would not be there at all. • Surely, in such situation, under such circumstances, the carrier’s duty to her was what it owed to a passenger, as much so, as if her injury had been caused by a rotten step on the car. When she came within reach of the vehicle provided for her transportation the carrier’s duty was, that she should not be injured by the vehicle, if the highest degree of care could prevent it. ' Such care appellant was bound to show affirmatively ; it did not attempt to show it. Therefore it is answerable in damages for her injury.

The judgment is affirmed.