Bricker v. Phil. & R. R.

1 A passenger, in the legal sense of the word, is one who travels in some public conveyance by virtue of an express or implied contract with the carrier, as by the payment of a fare or by that whieh is accepted as the equivalent thereof : Penna. li. Co. v. Price, 96 Pa. 267. 2 When a person, not accepted as a passenger and without the knowledge of the railroad company’s employees, is in a car not provided for passengers but exclusively devoted to the railway mail service, and with no l'ight to remain there, the company is not liable for injuries received by him in a collision.

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS NO. 4 OF PHILADELPHIA COUNTY. No. 223 January Term 1889, Sup. Ct.; court below, No. 721 June Term 1887, C. P. On June 17, 1887, Elizabeth S. Bricker, widow of Jacob L. Brieker, suing for herself and her children, brought trespass against Stephen A. Caldwell and George deB. Keim, receivers of the Philadelphia and Reading Railroad Company, to recover damages for the death of her husband caused by the alleged negligence of the defendant company. Issue. At the trial on February 8,1888, the plaintiff produced testimony to establish the following facts: On July 2, 1886, Jacob L. Bricker took a seat in a passenger car of defendant's train from Reading to Pottsville, by the way of Port Clinton. At Port Clinton he left that train to take the defendant’s train thence to Tamaqua, the latter train consisting of an engine and tender, a baggage car, a combined mail and express car, and two or more passenger cars, in the order named. He had been suffering with cholera morbus, before leaving Reading, and while en route from that place to Port Clinton. At Port Clinton, just before the starting of the train for Tamaqua, he went to the side door of the mail and express car, the second car of the train, and had a conversation with Mr. Decker, the railway postal clerk; he then went into the mail car, and, having seated himself, Mr. Decker -gave him some medicine. He was apparently in pain. He was given a second dose, and two or three minutes afterward a collision occurred, in which he received injuries resulting in his death. The distance between Port Clinton and the scene of the accident was about twenty miles, and the time taken in running that distance was some fifty minutes, the train however making several stops after leaving Port Clinton. The mail compartment was in the forward part of the combined car, and the rear part of that car was so obstructed by express matter that it was not possible to pass to the passenger cars in the rear, without alighting on the platform from the forward part of the combined car. No conductor or train hand directed Mr. Bricker to leave the combined car.. No notice on behalf of the railroad company was posted, but there was posted in the mail compartment a notice in large type issued by the Post-office Department, in the following words : “ Employees of the Railway Mail Service will allow no person to remain in their offices unless duly authorized. In all cases the conductor must be notified of their presence. No excuse will be received for a violation of this order.” Between Port Clinton and the scene of the accident no conductor came to Mr. Bricker, but after his death there was found on his person a mileage commutation-book, good for passage on that train, and the return coupon of an excursion ticket, the time of which had expired the day before. At the close of the plaintiff’s testimony, on motion of the defendant the court entered judgment of nonsuit, with leave, etc. Subsequently, a rule to show cause why the judgment should not be lifted was discharged, when the plaintiff took this appeal, specifying that the court erred: 1. In holding that the decedent was guilty of contributory negligence in being in the mail compartment of the baggage car, under the circumstances disclosed by the testimony. 2. In not leaving to the jury, as an issue of fact, the question of such contributory negligence. 8. In refusing to lift the judgment of nonsuit.