Cahill v. Philadelphia Rapid Transit Co. , 52 Pa. Super. 561 ( 1913 )

Opinion by

Rice, P. J.,

The plaintiff, a woman about fifty years of age, was injured in attempting to get aboard a car of the defendant at a street corner. Her testimony as to the circumstances was substantially as follows: After the car had come to a full stop, she took hold of the rail with her right hand and put her right foot on the step, but before she could get aboard the bell was rung and the car suddenly started. She then tried to climb on the car, but could not, and had to hop along on one foot about half a car length. She hung on as long as she could, when her grip loosened and she reeled round in the street and fell into a pool of mud and water,, receiving the injuries for which she brought this action. The body of the car, as well as the platform, was crowded. She did not see the conductor and did not know where he was. Nor did she know who rang the bell or from what part of the car the cord was pulled. Pier testimony, corroborated by that of George Harkins, a passenger, constituted her case in chief, so far as the circumstances of the accident were concerned.

In the presentation of its side of the case, the defendant adduced the testimony of the conductor to the effect that he had gone inside to collect the fares of passengers who had boarded the car at the street next below, a,nd was on his way to the rear platform to look after the safety of passengers and the starting of the ear; that he had gotten two-thirds of the way toward the rear platform, when some person on the platform, without the knowledge or permission of the conductor, rang the bell for the car to start; and that, when the signal was given and the car started, the conductor immediately demanded to know who pulled the bell, when some one on the car pointed out a young man, who subsequently gave his name and address. The defendant also adduced testimony tending to show that it had made due effort to produce the young man as a witness, but was unable to do so; it produced as a witness another passenger who testified that the young man who pulled the bell was a fellow passenger named Peter O’Brien.

Assuming the facts to be as testified by the plaintiff and her witness, and applying well-settled legal principles, the starting of the car must be deemed a negligent act and the proximate cause of the injury. Further, as the starting of the car, after taking on and letting off passengers at proper stopping places, was committed to the motorman and conductor and was under their control, and as the method and appliances for signaling the motorman to start were selected by the defendant, the starting of the car in this instance was an act which, in the nature of things, the defendant reasonably would be expected to be able to account for, and the plaintiff would not be. Therefore, in the absence of evidence accounting for the negligent act, the jury would be justified in concluding that the employees of the defendant in charge of the car, with authority to regulate its movement, were responsible for it. It follows that the testimony of the plaintiff and her witness, if believed by the jury, made out a prima facie case, even though she was unable to testify who pulled the bell. This is not inferring negligence on the part of the defendant from the mere happening of the accident, but is the proper application of the principle that, where the thing which causes the injury is shown to be under the management of the defendant, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care: Scott v. The London & St. Katherine Docks Co., 3 Hurlstone & Coltman, 596; Shearman & Redfield on Neg., secs. 59, 60. This statement of the law has been widely quoted and adopted, and, as shown by our Brother Henderson in St. Clair v. Edison Elec. Light Co., 38 Pa. Superior Ct. 228, has been cited with approbation in several well-considered Pennsylvania cases. The principle was practically recognized and applied in the recent case of Tilton v. Phila. Rapid Transit Co., 231 Pa. 63, and would have been plainly applicable here if the case had rested where the plaintiff’s testimony left it. Evidently recognizing the principle, and appreciating the inference which the jury reasonably could draw from the unexplained act, the defendant adduced testimony to show that the bell was rung, not by the conductor, but by an unauthorized passenger, and the learned trial judge instructed the jury that, if that was the fact, the plaintiff could not recover. This instruction was in accordance with the rule enunciated in Cohen v. Phila. Rapid Transit Co., 228 Pa. 243, that a carrier is not liable to a passenger injured while boarding a car, by the premature starting of the car by an unauthorized passenger. But it is urged that the court ought to have gone farther and given binding direction for the defendant for the reason that the testimony of the defendant’s witnesses upon this point was uncontradicted; and, in support of this contention, counsel also cite the Cohen case. It is to be noticed, however, that what was said in that case upon the subject of binding direction was said with reference to the particular facts of the case, and we do not understand the decision as laying down a general rule that would require binding direction under the evidence in this case. The evidence adduced by the defendant in that case was exceptionally strong. Three witnesses testified that McCausland pulled the bell, one of whom was McCausland himself. His testimony was entitled to great weight, because it was' against interest' and because, also, it related to an act of his own. There was'nothing to discredit him, , or to dis-credit the testimony of the- other' tívb wiihés'seéjMh-ainy/' material part of it'. Here,.the defencerests■ orí5the'‘tes-" timony of the conductor' that' he did not- pull the bell,- and-' the testimony of another witness that G’Briéibdid.- ■ Whilst - the testimony of the latter witness upon this' particular-' subject was not contradicted, it was in conflict with the' testimony of the plaintiff and her witness in an important' particular, namely, as to her exact position at the time the car started. A jury could scarcely be said to act capriciously in considering that if he was mistaken in that particular he might have been in other particulars as well. It is to be observed further, that there is no ground for presumption that, if the fact was not as testified by the defendant’s witnesses, the plaintiff would have denied it by her testimony. She was not in position to know, and therefore nothing can be taken against her because she did not thus testify in contradiction. Further, considerable significance is to be given to the opportunities that the trial court had to observe the manner, intelligence, and strength of recollection of the witnesses. For these and other reasons, we cannot say that the court committed error in refusing to charge imperatively that the testimony of the defendant’s witnesses must be taken for verity because it was not contradicted by direct testimony. Enough appeared in the case to fairly put the credibility of the witnesses in issue, and, therefore, to warrant the court in submitting that question to the jury: Second Nat. Bank of Pitts. v. Hoffman, 229 Pa. 429, and cases there cited. There are exceptions to it, it is true, but we are all of opinion that this case is not an exception to the general rule that, when proof of a fact depends upon oral testimony, it is the province of the jury to decide, under instructions from the court as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence. Many of the cases supporting this rule, beginning with Reel v. Elder, 62 Pa. 308, are cited in Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619; and, amongst cases decided since that time, may be mentioned Bartlett v. Rothschild, 214 Pa. 421; Perkiomen R. R. Co. v. Kremer, 218 Pa. 641; Fry v. National Glass Co., 219 Pa. 614; Duffy v. York Haven Water & Power Co., 233 Pa. 107; Tucker v. McMenamin, 48 Pa. Superior Ct. 553. It follows that the request for binding direction was properly refused. This was the only question orally argued, and the only question presented in the appellant’s statement of questions involved. There are some assignments of error, however, to certain portions of the charge. We have given full consideration to these and, without discussing them at length, conclude that the instructions cannot be justly complained of by the defendant.

The assignments of error are overruled and the judgment is affirmed.