Camden & Atlantic R. R. v. Hoosey

1. A passenger in an excursion train was unable to find a seat, owing to the crowded condition of the cars. Although there was standing-room inside, he stepped outside of a car while the train was in rapid motion, and placed himself on or near the edge of the platform, with his back against the window, holding on by an iron rail fixed to the car. In this position he rode for some minutes, when a jolt occurred, which threw him. to the ground, and inflicted an injury upou him. Suit having been brought by him against the railroad company, to recover damages for the injury done him, — Held, that he had been guilty of such contributory negligence as to preclude his right of recovery, and that the court should have so instructed the jury. 2. Semble, that as a general rule, and under ordinary circumstances, it is the duty of a railroad company to provide every passenger with a seat, and that if a passenger, exercising reasonable care and prudence, is injured in consequence of the company’s neglect in this rega.-d, the latter must respond in damages.

Error to the Court of Common Pleas No. 1, of Philadelphia county: Of July Term 1881, No 93. Case, by John Hoosey, against the Camden and Atlantic Railroad Company, to recover damages for personal injuries suffered by the plaintiff, caused, as alleged, by the negligence of the defendant company. On the trial, before Pierce, J., the facts appeared as follows : — On August 26th 1878, the plaintiff, a tavern-keeper, joined in an excursion to Atlantic City gotten up by the St. Ann’s Temporáneo Society. The society made terms with the railroad company, and sold excursion tickets for its own benefit. The excursion train consisted of twenty cars, which afforded room, on the down trip, for all the passengers to be seated. On the return trip the train started from Atlantic City about six o’clock n. m. About ten minutes before it started the plaintiff got on the train on the next to the rear car; he looked in the rear car,'and seeing that it was over-crowded, and people were coming out from it, he walked through the train to the forward car, and found the entire train over-crowded and no seats vacant. After remaining standing in the front car for some time, he proceeded to walk back through the cars, the train being then in rapid motion. When he had passed through about two thirds of the cars, all over-crowded so that he was obliged to push through people standing in. the aisles and on the platforms, he stopped on the rear platform of a car, holding on to a railing under the window, the train being still in rapid motion. The plaintiff’s testimony at this point was as follows; “ I stopped to let people pass who were coming in the opposite direction to me; there were many people coming in the opposite direction; I stopped on the platform to let them get into the car; must have been there one or two minutes before I got a chance to go through; I stood one side outside on the platform to let them get into the car; I had been standing there one or two minutes; the train got a jerk of some kind and somebody struck mo on the shoulder and staggered me; then I made a grab with both bands and missed with my right and caught with my left; then ] fell down, and the train was going so fast that I fell between the platforms or dashers ; I called for help; stop the train, I hollered ; a young man caught hold of me; it was John Bannon; he tried to pull me on; I could not tell what he done, I was so excited; I must have held on for half a mile or more; may be a minute and a half or a little over ; Bannon was holding on all this time; I finally let go; could hold on no longer; I fell to the ground.” The accident took place near Hammonton, about half way to Philadelphia. One, of the passengers on the platform applied the brake and another pulled the bell-rope, which broke, but the train continued on its journey. The plaintiff was found lying near the track severely injured, though not unconscious, by two residents of the neighborhood, who procured a wagon and took him to Hammonton, where his arm was amputated by a surgeon. The plaintiff admitted that he had taken several drinks during the day at Atlantic City, and two clergymen, who had seen him on the train shortly before the accident, testified that they thought from his appearance he had been drinking, but was not drunk. The men, who found him after the accident, testified, however, that from his appearance, manner, language and from the smell of liquor they had no doubt he was intoxicated. It was in evidence that the rules of the company forbade passengers from standing on the platforms or passing from caito car while the train was in motion, and that notices to that effect were posted inside the cars and outside on the doors. The plaintiff presented, inter alia, the following points:— (1) If the jury find from the evidence that the plaintiff was a passenger upon the cars of the defendants, they were bound to provide him with sufficient accommodation and to carry him in safety, and the failure to provide such sufficient accommodation was negligence on the part of the railroad company. Answer. I affirm. (7) Even if the jury should find from the evidence that prior to the accident the plaintiff had been drinking, unless such drinking had rendered the plaintiff unable and incompetent to conduct himself as an ordinarily prudent man would have conducted himself under similar circumstances, and thus caused or contributed to the accident, the plaintiff is entitled to recover. Answer. 1 affirm, if there was no contributory negligence on his part, and the injury was caused by the negligence of the defendant. The defendant presented, inter alia, the following points:— (3) That apart from any rule or notice upon the subject, it is negligence in a man of full age to stand upon or cross a platform of a car in rapid motion upon a steam railroad. Answer. I affirm; unless compelled by circumstances to do so. (5) That if the jury find from the evidence that the accident to the plaintiff would not have occurred if he had not been standing upon the platform, he is chargeable with contributory negligence, and therefore cannot recover. Answer. Declined,, as stated, leaving to the jury to say whether, under the circumstances there was contributory negligence on the part of plaintiff. (7) That even if .a search for a seat were the real purpose of the plaintiff in going out upon the platform, and even if it were not negligence for him to have crossed from car to ear for that purpose, yet if the jury believe from the evidence that he lingered upon the platform instead of immediately crossing, the verdict should be for the defendant. Answer. 1 qualify this, so as it will read his real “ and only” purpose; and affirm, unless compelled thereto by circumstances. (9) That' the evidence shows negligence on the part of plaintiff which contributed to produce the injury complained of, and therefore he cannot recover. Answer. I decline. It is for tlie jury to determine if there was any contributory negligence on the part of plaintiff. Verdict for the plaintiff for $2,000 and judgment thereon. The defendant, thereupon, took this writ of error, assigning for error, inter alia, the answers to the above points. -It is not the duty of a railroad company absolutely and under all circumstances to provide seats for all passengers. Certain contingencies may render this an impossibility. Their duty is fulfilled if, with reference to existing circumstances, they use due skill and care in the employment of the facilities at their command. The general duty to provide sufficient accommodation rests on a different basis from that to provide safe means of transport. The circumstances here were exceptional. The company supplied an excursion train for a round trip,with ample seat accommodation for members of the excursion, yet the judge, in affirming the plaintiff’s first point, erroneously instructed the jury that it was negligence not to have provided sufficient accomodations to meet an unanticipated and unauthorized increase of numbers upon the return trip: Meier v. Railroad Co., 14 P. F. Smith 225 ; 2 Redfield on Railways 218; Oxlade v. Railway Company, 1 Com. B. N. S. 87 Eng. Com. L. Rep. 454. But the proximate cause of the accident was the plaintiff’s contributory negligence in placing himself in a position of peril contrary to the known regulations of the company. Even if the company had failed in duty in not providing him a seat, he was not justified in assuming an unnecessary hazard, and charging the results of it on the company. He should have appealed to the law for redress : Siner v. R. R. Co., 37 Law J. Ex. 98 ; Lucas v. R. R. Co., 6 Gray 64; Saunders on Negligence, 25-28 ; Stubley v. R. R. Co., Law Rep. 1 Exc. 13 ; Hagan v. R. R. Co., 10 W. N. C. 360. This was not the case of a passenger exposing himself to one danger by trying to avoid another. No urgent necessity required him to pass from car to car, much less to remain standing on the platform. He could not even hope to remedy his inconvenience, as he testified that he had already passed through the train and found all the cars crowded. His acts clearly amounted to contributory negligence which caused the accident, and the court should have affirmed our ninth, point and have directed a verdict for the defendant: 8 Am. Law Rep. N. S. tit. “ Negligence ;” Gosliorn v. Smith, 11 Norris 435; Baker v. Fehr, 10 YV. N. O. 57; R. R. Co. v. Armstrong, 2 P. F. 8m. 282; R. R. Co. v. Yerger, 23 P. F. Sm. 121; R. R. Co. v. McElwee, 17 P. F. Sm. 315 ; R. R. Co.v. McClurg, 6 P. F. Sm. 294, 298 ; R. R. Co. v. Aspel, 11 BL 147; Lewis v. Balt. & Ohio R. R., 13 Amer. Law Reg. N. S. 285. The requirements of care on the part of passengers on steam cars are more stringent than on street horse cars: Railway Co. v. Walling, 9 W. N. C. 470; Mecsel v. Railway Co., 8 Alíen 234; Lynam v. Railway Co., 114 Mass. 83. There is no doubt that over-crowding a railway train, whereby injury happens to a passenger which would not otherwise have happened, is negligence on the part of the company : Wharton' on Negligence § 64. The negligence was aggravated in this case, where the company permitted a horde of strangers to take passage upon a train furnished and intended for the limited number comprising the special excursion. [Sharswood C. J. — Is-there any evidence that the railroad company sold additional tickets on the up train ?] No direct evidence, but it was in evidence that there was sufficient seat room going down, and that the society settled with the railroad company after the down trip ; and it follows, as an irresistible inference, that tlie company sold additional tickets on the up trip. It is a presumption of law that all persons on a railroad' train not in the employ of the company, are passengers who have paid a consideration : Creed v. R. R. Co., 5 Norris 139. Under the circumstances, the plaintiff was not guilty of contributory negligence. This is established by the following authorities: “ It is not necessarily negligence for a passenger to ride upon the platform of a car. It certainly is not improper for him to do so if he cannot find a seat inside, and he would probably be justified in doing so if any nuisance were allowed inside the car, as drunken or obscene passengers, or quarrelling, or even smoking, if it wrere offensive to him:” Sherman 6 Redfield on Negligence § 284 ; Meesel v. R. R. Co., 8 Allen 234; Marquette v. R. R. Co., 33 Iowa 57Ó. Passengers are not to be deemed guilty of negligence for standing on platforms of cars in motion when there are no vacant seats within the cars: Willis v. Long Island R. R., 34 N. Y. 682. If the plaintiff, in looking for a seat, took only such risks as, under the same circumstaces, a prudent man would take, he was not guilty of contributory negligence : Sherman & Redfield on Negligence, § 282. A railroad company may not herd, its passengers like cattle in crowded cars and then claim that the efforts of the passengers to find a more comfortable or tolerable position is such contributory negligence as will relieve it of liability. It has been held that even whore a statnte forbids a passenger to stand upon the platform, if the company’s negligence force him there, he is not responsible, and the statute does not operate: Sherman and Redfield on Negligence § 284; Clark v. Eighth Avenue It. It. Co., 32 Barb. 657; Willis v. Long Island It. It. Go., supra. The questions of negligence and contributory negligence were properly submitted to the jury, and their verdict is conclusive: Stout v. It. It. Co., 17 Wallace 657; It. It. Co. v. Collarn, 73 Ind. 269; Leishman v. R. R. Co., 23 Law Times 712.