Thane v. Scranton Traction Co. , 191 Pa. 249 ( 1899 )

Opinion by

Mb. Justice Mitchell,

The proper and assigned place for passengers is inside the car. Unless he shows some valid reason’ to excuse him, a passenger is bound to put himself in the appointed place, and if he does not, he takes the risk of luis location • elsewhere. This L the settled rule of all our cases. In Germantown Pass. Ry. Co. v. Walling, 97 Pa. 55, it was said by the trial judge and affirmed by this Court, that “ it is the duty of the passenger to go into the proper, usual and safe place, if it is possible to do so.” And in Mann v. Phila. Traction Co., 175 Pa. 122, it was said “the car was empty and it was the clear duty of the passenger to take his seat on the inside.”

In the present case it is undisputed that there were vacant seats in the car, one of which the plaintiff could and should have taken. He chose instead to stay on the platform. In so doing he took all the risks incident to that position. The injury he received by being thrown against the dasher was the direct consequence of his position, and would not have been received had he been inside. Whether he would have received some other injury, equal or greater, is conjectural and irrelevant. If he is to recover at all it must be for injuries received, not for what he might have received under different circumstances.

The distinction sought to be made between injury from ordinary risks of the road and from a collision, the result of negligence of the carrier, is not sound. What the passenger took upon himself was the risk of his position from any cause. By going inside he could have put himself under the protection of the highest care possible, but he chose not to avail himself of this protection and thereby took his chances in the other place.

It is the long settled rule that standing on the platform of a moving railroad train is negligence per se, and on the other hand our eases have practically established that standing on the platform of an ordinary horse car is not negligence per se but raises a question for the jury. In respect to this subject, the electric trolley car occupies a position between these two. As said by our Brother Fell, in Reber v. Pittsburg, etc., Traction Co., 179 Pa. 339, “the use of electricity as a motive power by passenger railway companies has created new conditions from which new duties arise. The greater speed at which cars are ipoved increases the dangers to passengers and to persons on the streets, and of these dangers all persons must take notice.” The principle at the foundation of the rule is and always has been the same, but in the development of methods of travel, the circumstances and conditions have changed. Bapidity of transit is no longer a mere convenience to the traveler, it has become a matter of vital interest to the general business of the community. The increased speed upon passenger railway lines, with its resultant danger, now approximates to that of steam railroads and, indeed in many cases, exceeds the speed of the fastest trains at a time not too remote to be within the memory of every judge on this bench, a time at which the rule as to steam cars was first established. The reasons which were potent in the establishment of that rule then are equally potent in its application now. We hold therefore that where there is room to be seated inside in the passengers’ proper place, and no special and sufficient reason is shown why he should not avail himself of it, it is negligence per se to remain on the platform of a moving trolley car.

Cases where the car is crowded and no seat is available rest on a different basis. There the traveler, if he is to get on at all, must stand on the platform with its rods, etc., to hold by, or inside with a strap for that purpose. ' He is presented with a choice of evils, and his action must be judged by the jury, while on the other hand the carrier by receiving him undertakes and gives him assurance that it will take care of him and guard him against accident as far as the circumstances permit: Germantown Pass. Ry. Co. v. Walling, 97 Pa. 55, 58.

Judgment affirmed.