Perret Et Ux. v. George , 286 Pa. 221 ( 1926 )

Mrs. Perret was injured, when alighting from a street car, by stepping into a hole in the street. She says she was prevented by people in front of her from seeing the hole until in the act of stepping from the car, when it was impossible to stop her descent. It was daylight, the accident occurred at noon and there was no occasion to disregard the ordinary precautions of safety. The car passed a short distance beyond the usual stopping place, at the intersecting street, because of a building operation at the corner.

The hole into which appellant stepped was in the public highway, a thoroughfare over which defendant had no control, was not in any way responsible for, and had no authority to repair, if needed. However broadly and strictly we may have held street railways to care in receiving and discharging passengers, where the company owns or controls the right-of-way with the approaches thereto, the rule is different where such right-of-way and approaches are not so owned. In the latter case, there is a permissive use of the street in common with others, without any control of it. The public officers were in authority, and the municipality is responsible for the street's condition if an injury results therefrom: Scanlon v. Phila. Rapid Transit Co., 208 Pa. 195, 197. It is only in exceptional cases arising under contract that a street railway company is responsible for accidents occurring in the cartway of a street through lack of repair.

Street car companies are not required to observe the condition of streets over which its cars travel so as to stop their cars with exactness at places where passengers may avoid ordinary defects in the highway while alighting. To require otherwise would be to exact of such carriers a degree of care not consistent with efficient public service and would impose an obligation impossible of performance, considering the condition of some of the highways of to-day. Street car companies, of course, cannot stop their cars for persons to alight at places manifestly dangerous, as where the car door opens to the side of a street immediately adjacent to an embankment or as in McCollum v. Pitts. Rys. Co. (No. 1), 51 Pa. Super. 637. Here, the stop was made on an improved public highway, a place supposed to be reasonably safe; the passenger had, in legal contemplation, ceased to be a passenger when she stepped to the street. To hold, under such circumstances, that the duty of stopping at a safe place to alight embraced the obligation to avoid any defect in the highway, between the car and the curb, would cause the company to be liable as an insurer of the safety of a pedestrian in coming from or going to a car. If there was responsibility for the accident, it was the municipality's not appellee's. The case failed because defendant's negligence was not shown.

Judgment affirmed.