Mitchell v. Electric Traction Co.

Opinion by

William W. Porter, L,

The plaintiff was a passenger upon one of the electric cars of the defendant company, in the city of Philadelphia. As the car proceeded down Tenth street, between Market and Chestnut streets, the plaintiff notified the conductor to stop about the middle of the square. The conductor, as the plaintiff says, pulled the bell rope. The speed of the car diminished. The plaintiff prepared to alight. He passed out to the platform and placed one foot upon the lower step. While in this position the speed of the car was suddenly increased. The plaintiff says: “ There was a sudden jerk — a violent— quite a violent jerk,” and that when this happened “the car was going very slowly. ... It had not stopped.” The plaintiff says that he was thrown from the car and injured. The one error assigned is the refusal of the trial judge to direct a verdict for the defendant company. The epitome of the facts here given is based upon the plaintiff’s testimony. He was contradicted bjr several witnesses for the defendant company upon matters essential to his recovery. The court below submitted to the jury the questions whether the defendant company was negligent, and whether the plaintiff was guilty of contributory negligence.

Viewed from the plaintiff’s standpoint this is not the case of a passenger attempting to jump from a moving car, nor is it the case of a passenger who has elected to ride upon the platform with knowledge of vacant seats within the ear. Rather does it come within the class of cases in which it has been held to be the duty of the carrier to give the passenger opportunity to alight in safety: Passenger Railway Co. v. Stutler, 54 Pa. 375.

The plaintiff’s testimony indicates that he went upon the platform and step after the car had perceptibly decreased its speed, pursuant to his notice to the conductor and subsequent to the conductor’s signal to the motorman to stop. He says that he had on former occasions alighted from the cars of the defendant company’s line at the point on Tenth street where he expected to alight on the occasion of the accident.

The modern mode of transportation by electricity is more dangerous than the former mode by horse power. Attention has been called to this new condition and the development of the law to meet it in more than one judicial opinion in Pennsylvania. It can be urged persuasively that a passenger should not be permitted to ride for any appreciable time upon the step of an electric car without being held responsible for an injury due to his position. On the other hand, it can be urged with much show of reason that the rapidity of the transportation demanded by the public and furnished by the carrier requires passengers to be prompt and alert in entering and alighting from the car, and that therefore they should not be held culpable for going upon the platform, or even upon the step of the car before it comes to absolute rest.

The briefs of counsel furnish us with no case in Pennsylvania in which the duties of a passenger alighting from an electric car have been specifically defined. We have, however, the case of Linch v. Traction Co., 153 Pa. 162, strikingly similar upon its facts to the one before us, save that there the accident happened to a passenger upon a cable car. It is well known that the cable car was the intermediate step between the horse car and the electric car. In its speed, suddenness of stopping and starting, it resembled the latter rather than the former. In the case cited, as shown by the report of it, the plaintiff’s testimony was as follows: “ I told the conductor to stop and leave me off at Boston street. He rang the bell and. the car slowed up. I got down on the step and got hold of the car handle. The car never stopped, and just as I happened to make a step the car started. I held on a little bit, and I swung round and fell straight up alongside of the car.” He says' further that the “ car slackened up, but it started before I got off, when I was on the way of getting off,” and that “ it started all of a sudden.” The error assigned was the failure to direct a verdict for the defendant. The Supreme Court said, in a per curiam opinion, inter alia, “ We do not think it was a case that could have been withdrawn from the jury.” This view of the law seems to be made applicable to transportation by electric cars in the case of Smith v. Easton Transit Co., 167 Pa. 209.

On the authority of these decisions we are of opinion that the trial judge was not warranted in taking the case from the jury, and the judgment is therefore affirmed.