Pennsylvania R. v. Lyons , 129 Pa. 113 ( 1889 )

Opinion,

Me. Justice McCollum:

The plaintiff below was a passenger on a train of the Pennsylvania Railroad Company, from Philadelphia to Haverford College station, on the evening of April 6,1886. In alighting from the car at the latter place, he fell upon the platform of the station and was injured. Alleging that the injury he received was caused by the unassisted negligence of the company, he brought this action to recover compensation for it. TTis claim is that the train did not stop long enough to allow him to get off the car safely.

It was the duty of the company to give him a reasonable time to leave the train at the place of his destination, and it was his duty to use reasonable diligence and care in getting off there. It clearly appears that the train was moving when he left it, but whether he fell or voluntarily jumped from it is not clear, because the evidence on this point is conflicting.

As the alleged failure of the company to stop its train long enough to enable the plaintiff to leave it in safety constitutes the negligence complained of, it follows that if the company was not in default in this particular, it is not liable to the plaintiff for the injury he received. The testimony on the part of the plaintiff is, that the train stopped from ten to twenty seconds; on the part of the defendant, that it stopped a minute, and that from ten to fifteen passengers, mostly ladies, got off the train, and one or two passengers got on it, while it was at rest. It is contended that upon this evidence the court should have directed a verdict for the defendant upon the ground that no negligence was shown, and the court’s ref us alto do so constitutes the fifth specification of error. We have no hesitation in deciding that this refusal was right, and that it was for the jury to determine upon the whole evidence whether the train stopped a reasonable and proper time to allow its passengers to alight safely. What is a reasonable time depends on the circumstances of the case as developed by the proofs.

It is further contended that if the defendant company failed to afford the plaintiff a reasonable time to leave the car safely, he was guilty of contributory negligence in getting off while it was moving.

It is admitted that the plaintiff got off the car while it was running upon the track, and the general rule that it is negligence in a passenger to jump from a moving train, is not seriously questioned. But to this general rule there are exceptions. When the passenger is placed in peril by tbe default' or negligence of the company, or when he leaves the train while it is in motion, by direction of the company’s agents, it is for the jury to say, upon the evidence, whether the act was negligent or not. In such cases all the circumstances, including the speed of the train at the time of leaving it, must be considered: Penna. R. Co. v. Kilgore, 32 Pa. 292; Penna. R. Co. v. Peters, 116 Pa. 206; Canal Co. v. Webster, 18 W. N. 339; Johnson v. Railroad Co., 70 Pa. 357. In view of the evidence in the case and the principles already stated, the denial of the defendant’s first, third, and fifth points was proper, and the specifications founded on such denial, are dismissed.

The answer to the defendant’s second point was erroneous and misleading. It did not, in terms, affirm or refuse the point, but it substantially denied any effect to a finding by the jury that the train stopped a sufficient time for the plaintiff to leave it, and that he jumped from it after it had started upon its course; and it declared that in all cases it was for the jury to determine whether it was negligence in a passenger to jump from a moving train, and that this depended altogether upon the speed of the train when he jumped from it. We cannot accept this as a correct statement of the law on the subject to which it relates. If a passenger, in alighting from a railway car, receives an injury, which he alleges was caused by the neglect of the company to stop its train long enough to enable him to leave it safely, he must prove such neglect to the satisfaction of the jury or fail in his action. When, therefore, it is found that sufficient time was .given him to get off in safety; that he did not do so, but remained on the train until it had started upon its course, and then jumped from it and was injured, a clear case of injury arising from his own negligence is presented and he cannot recover. In the present case, as we have seen, it was for the jury to determine whether a sufficient time was allowed the plaintiff to alight from the car before it started on its course, and this involved a consideration of all the circumstances of the case; but if it was ascertained that sufficient time had been given for that purpose, that he did not use it, but remained upon the car until it was in motion, and then jumped from it and was injured, the jury should have been instructed that his own negligence caused the injury and prevented a recovery. This was tbe instruction the defendant’s second point sought but failed to obtain. A sufficient time in such cases means time to alight safely in the use of reasonable diligence and care, and has regard to all the circumstances which affect the act of getting off a train. The third specification of error is sustained.

We cannot say that it was error to receive the declaration made by the plaintiff immediately after the train passed, and while he lay on the platform where he fell. It was, under the authorities, a part of the res gestse: Tompkins v. Saltmarsh, 14 S. & R. 275; Elkins v. McKean, 79 Pa. 498. It differs from the declaration which was rejected in Ogden v. Railroad Co.', as that was made after the removal of the injured party from the place where he was found; in this case, it was made while the party was lying where he fell and an instant after his fall. The first specification of error is not sustained.

Judgment reversed, and venire facias de novo awarded.