Pennsylvania Railroad v. Kilgore , 32 Pa. 292 ( 1858 )

The opinion of the court was delivered by

Woodward, J. —

After an attentive consideration of the ingenious criticism to which the charge of the learned judge has been subjected in the hands of counsel, we have come to the conclusion that it was only too favourable to the plaintiffs in error.

Whilst there is no doubt about the doctrine of concurrent negligence which the learned counsel invokes, the circumstances of this case scarcely admit of its application. The company, as public transporters, took the plaintiff and her three children aboard of their cars at Pittsburgh, under a contract to set them down safely at Greensburg. That it was their duty to stop long enough to let these passengers off at the point of destination is not denied, and. that they failed in performing this duty is established by the verdict.

The court is complained of for putting it to the jury to say whether the stop was sufficiently long to permit the plaintiff and her children, “ together with all the other passengers, to leave the •cars with reasonable convenience and safety.” The expression all the other passengers is to be understood, as the jury doubtless understood it, as referring to those who were to alight at Greens-burg; and, so limited, it was the very form the question ought to have assumed, for she was to get off in the midst of all .others who were to get off at that place, and no consideration of her case could be fair that would lose sight of this fact.

It is an established fact, then, that the company did not give her, in the actual circumstances in which she was placed, reasonable time to leave the ears in safety.

But they are not responsible for this wrong, it is argued, because she was guilty of an act of imprudence in attempting to leave the cars after they had resumed motion; and Aspell’s Case, 11 Harris 147, is relied on.

If the train had not stopped at all at Greensburg, and she had jumped off in spite of remonstrance whilst it was sweeping past that point, there would have been a parallelism betwixt her case and Aspell’s; but as the facts were, there is none. A sickly woman, with three young children in charge, is informed by the conductor that she is arrived at her destination — the ears are stopped to permit her to alight, and whilst engaged in getting her children off, they start again, and she springs for the platform on which one of her children has fallen prostrate — where is her -negligence or rashness in all that ?

If you did not mean she should attempt to get off there, you should not have-stopped and invited her to try — if you involved her in the attempt, and yet denied her time to accomplish it, her-efforts are not to be imputed to her for negligence, and her case likened to Aspell’s. That would be grievous injustice.

That it is wrong for a party to attempt to leave cars whilst they are in motion, is an abstract truth that counsel complain of the court for not misapplying here. It is one thing to define a principle of law, and a very different matter to apply it well. The rights and duties of parties grow out of the circumstances in which they are placed. It was as natural for this woman to leave the cars as she did in her circumstances, as it was rash for Asp.ell to leap from them in his circumstances. It would be as unreasonable to impute negligence to her, as it would have been to have held the company responsible, to him.

The cause seems to have been well ruled at all points, and the judgment must be affirmed.

Judgment affirmed.