Pierce v. Delaware, Lackawanna & Western Railroad , 358 Pa. 403 ( 1948 )

Opinion by

Me. Justice Linn,

' Defendant appeals and' complains of thé refusal of its motions for judgment :úó[withstandings the verdicts for the plaintiffs, in their suit for damages for injuries to the wife-plaintiff, sustained in alighting from a passenger train in the railway station at Scranton, Pennsylvania.: Mrs. ,Pierce had become, a passenger at Syracuse,-New York-; her destination was Scranton; she changed cars at Binghamton, New York, and boarded a fifteen'car train which'made ho stops between Bing-liámton and Scranton. The train, arrived at about 3.35 A.M., February Í9, 1945. The.car in which she,was .a passenger is -described in the record as - “-. . . an old fashioned, open vestibule type, with one-light-in the e'en* ter of the ceiling of the vestibule-exit.”-' : ' ' ’

Mrs. Pierce was about thirty-six.. Some 20 years -be: fore,-her. right leg Jiad. been.amputed five inches-above the knee. She wore a wooden leg “supported'by a body brace” and on the trip to Scranton was accompanied by her two arid one-half year old child and carried a suit case -and a poékétbook handbag! She'asked á passenger who was- leaving ' the train-at Scranton-“if "she would mind? carrying iny little bby off' and I would help her with her bag and she -said yes, and- she carried him d'dwn the steps.” -Mrs. Pierce was asked, “Q.‘And did you carry her bag? A. I carried her bag under my arm. I earriéd my own suitcase. I carried about two pocketbooks up on my elbow. Q.’ You. had two'pocketbooks? A. tip at my elbow-; 'one bag in my hand, the other'bág in'under my arm, and I went down along the railing. Of'course, when Í' slipped everything went.” She testified that the passenger with plaintiffs’ son preceded "her down the steps to the station platform; that when she (the plaintiff) started down by placing her left foot on the firs(t step she slipped and* fell to the station platform where her sister and her husband,-who had come to meet her, picked her up.

An effort wag made to support;a.contention tbat .tb.ere was grease on tbe .step and-,that it caused 'her. to fall. She testified,- “I slipped.on something soft-and -very .slippery,”. Neither-the plaintiff .nor .-any¡other witness, saw what; she' slipped on,, none. saw. any grease, there.■. Mrs, Pierce, thought there .was grease because she slipped and because several days.:after the accident -she noticed a grease spot on the back of the coat which she, wore; on the -night, of. the fall.and .which;, she -.assumed,, absorbed the. grease on.the step. If there.had-been such -a-deposit of. grease.on .the step,sufficiently long for.the' trainmen ■to be advised of it,-it. would-haye;-been evidence from which the jury-might have inferred negligence, but-the eyi.dence is insufficient to ¡support .such .a- finding; the learned;.trial judge so concluded as. we ■’understand his opinion written in. disposing -of defendant’s motions. In passing on the motions.he said: “We seriously doubt if this evidence; [concerning grease on, the steps] in: itself is.sufficient to.warrant the finding plaintiffs contend:.,:... Its. existence cannot be. left, to, conjecture,”-. Conjecture is. not. enough... The burden of.proof was on the plaintiff who did not produce sufficient evidence on the: subject: compare DeReeder v. Traveler’s Insurance Co., 329 Pa. 328, 333, 198 A. 45; Stauffer v. Rwy. Express Agency, Inc., 355 Pa. 24, 47 A. 2d 817.

The. learned trial judge1 thought that the.defendant failed in its duty to render assistance to Mrs. Pierce in alighting from the train. We think there is not enough evidence on the subject to support the verdict on that ground. The evidence is that when she boarded the train at Binghamton she wus assisted by ¡the trainman , at .the car which .she, boarded, and .by a soldier.^* She ¡did not advise tbe trainman wbo put ber valise “right at the top of the platform” at Binghamton that she would need or desired assistance in leaving the train at Scranton nor did she notify the trainman who took her ticket between Binghamton and Scranton that she desired assistance in leaving the train. It is of course true that if “a carrier accepts as a passenger a person known to be affected by either physical or mental disability, whereby the hazards of travel are increased, it must exercise a greater degree of care for the safety of such passenger than is ordinarily required.” Jameitis v. Wilkes-Barre Railroad Company, 277 Pa. 437, 121 A. 317. But the evidence does not show that it was apparent to the trainmen that she would require assistance in leaving the train. There is evidence she walked with a limp, but that in itself is not sufficient. There is no evidence that would have led the trainman to think Mrs. Pierce was handicapped with a wooden leg. There was nothing to show that the trainman who took her ticket during the trip to Scranton would observe that she was any different from any other seated passenger. If she required assistance, she should have informed a trainman of the need before reaching her destination: compare Baron v. Wilkes-Barre Co., 71 Pa. Superior Ct. 103; Low v. Harrisburg Rwy. Co., 290 Pa. 365, 368, 138 A. 852.

Judgments reversed and here entered for defendant.

* “Q.:WiU you please, teg us wlie,tlier.>ornot you'were .given-any aid in Bingharnton by anybody; other-th^n -an employee of tbe,.com-pany? A. Yes. The soldier sitting at pie station opposite (to. me-sa.w tbe predicament. I .was in and .trying,-to beep,my little.boy awake. Q. We .are.not interested in what tbe. soldier saw but wbat.be did. A. He picked up the baby and carried him up the platform and placed him on the platform and stood in the doorway until the trainman helped me up the steps and I took him and sat him in the seat. Q. Who carried your valise into the car, I mean. A. The trainman carried it up the steps and put it right at the top of the platform, and I took the second seat in there, second or third, in that neighborhood. Q. Did the trainman help you up the steps? A. Ves; as far as his arm reached. I only had to get up the platform. Q. One step up to the platform? A. Ves; he helped me all the way up to the platform.”