Collins v. Second Avenue Traction Co.

Opinion by

Porter, J.,

The contention in this case seems to have centered on the proposition that the plaintiff cannot recover because his injuries were caused by the alleged negligence of a fellow servant. Tbe peculiar facts presented make the question thus raised an interesting one but not one whose determination is necessary to a decision of this case. Nor need the matter of the alleged negligence of the defendant be discussed, inasmuch as the testimony discloses such contributory negligence on the part of the plaintiff as should of itself have led the court below to direct a verdict against him.

At the time of his injury the plaintiff was an “ extra ” conductor, thoroughly familiar with the construction and management of the defendant’s car-barn. He was leaving the barn at noon after ascertaining that he was not then needed. He had two doors out of which he might pass. Each of them was some ten or twelve feet wide. Through these doors ran the tracks of the defendant company. The further door was unobstructed. The nearer door was partially obstructed by a motionless car which the plaintiff knew was about to be started out. On the left side of this car there was room for him to pass out safely. He chose the right side of the car to attempt •to pass out, where the space was but a few inches and where if the car should move he must inevitably be crushed. The car started. The plaintiff was caught between it and the side of the doorway and injured.

He might safely have gone out by the unobstructed door, or in the space to the left of the standing car. He himself says that the space “ would be greater at the other side than it was at the side at which I attempted to go out.” It is plain that out of three possible places of egress he selected the only one of visible danger.

He was on the premises, as he contends, rightfully, and while demanding that the defendant be held for the results of negligence, he cannot escape the reciprocal obligation to exercise care on his own part.

The degree of care to be required of the plaintiff under the facts of this case is no less than that imposed on users of the highways. Their obligation has been expressed in Dickson v. Hollister, 123 Pa. 421, thus: “ It is the duty of every pedestrian upon a public highway to use reasonable care for his own safety and to avoid an open or apparent danger.” Quoted with approval in Lumis v. Traction Co., 181 Pa. 268. On all the testimony in the case it is plain that the plaintiff know’ingly and needlessly put himself into a position of apparent ’ danger. It is no excuse for the plaintiff’s rashness that thfe employees of the defendant company were in the habit of leaving the building by the method attempted by this plaintiff. That some persons are willing to put themselves in positions of palpable peril, is no justification to their imitators, who must bear the unfortunate results of their rashness.

The fourth assignment of error is sustained and the judgment is reversed.