Rothchild v. Central Railroad , 163 Pa. 49 ( 1894 )

Opinion by

Mr. Justice McCollum,

The injury which led to this action was received by the plaintiff while she was in the act of alighting from the defendant company’s car at Tamaqua on the evening of the 22d of August, 1890. It appears that she fell between the steps of the car and the platform, and sprained her ankle so that for several weeks she was unable to walk without the aid of a crutch or cane. After she had substantially recovered from ■the effects of her fall it seems she thought the company ought to compensate her for it on the theoiy or ground that her fall was attributable to its unassisted negligence. Of course the mere fact that she fell and was injured furnished no.support to the charge of negligence. In the prosecution of her suit it devolved on her to show wherein the company was negligent, and the connection of its negligence with the injury to herself. ■ The learned court below concluded, upon a careful consideration of the evidence she submitted to sustain her claim, that she had failed to present a case for. the jury, and accordingly entered a compulsory nonsuit. From the refusal to set aside the nonsuit this appeal was taken.

Was there any error in this refusal ? In answering this question we must not overlook the absence of any evidence or claim of any defect in the platform provided by the company for the reception of its passengers on their retirement from its trains, or of any fault in the construction or arrangement of the steps of its cars. As we understand the theory of the plaintiff in respect to negligence it involves two propositions, (1) there was too much space between the steps and the platform, and (2) the latter was insufficiently lighted. In reference to the first proposition, we note that there is no claim or pretence in the evidence or elsewhere upon the record that the space between the step and the platform was greater on the night of the accident than at any former time, or that it has been reduced since. The plaintiff therefore could easily have shown, if she had desired to do so, the exact distance or space between them by actual measurement. For evidence of this character, easily and readily attainable, the mere guess of a single witness, who by his own confession could not tell the width of the space and never gave any thought to the subject, is not a decent substitute. It is absolutely worthless.

The evidence showed that the platform was lighted. There was an electric light upon it from fifty to one hundred feet from the point where the plaintiff fell. That she did not notice it does not overcome the clear evidence that it was there, or convict the company of a neglect of its duty to its passengers. It does not appear that any one complained or suggested before the accident or at the time of it that the platform was insufficiently lighted. It requires more than a scintilla of evidénce to establish negligence, and that cannot be found in this case in support of either proposition relied on by the plaintiff.

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