Schimpf v. Harris

Opinion by Me. Justice Pell,

The plaintiff took a train at the Philadelphia and Eeading Terminal station to go to Girard Avenue station. Because of a strike of the employees of the city passenger railway companies the travel on the defendants’ road had been greatly increased, and the conductor and brakeman in charge of the train had not been able to collect all the tickets when it reached Girard Avenue. As the train stopped at the station someone of the party with whom the plaintiff was riding called out: “ Our tickets have not been taken up.” This remark was repeated by others of the party and was beard by a number of employees of the road, conductors and brakemen, who were in the car going home, and not on duty. One of these employees, a conductor, said to a brakeman: “You had better get out there and see to them, and see that their tickets are gathered.” The brakeman arose from his seat, and either at that time or as he crossed the platform of the car, said: “I will take your tickets.” He walked hurriedly out of the car, across the platform to the front platform of the next car, and down its steps to the floor of the station, and received the tickets from the passengers. It was alleged by the plaintiff that the brakeman in passing her pushed her off the platform and steps, and that the fall caused her serious injury.

The question whether the plaintiff was pushed or fell accidentally ; whether, if pushed, it was by an employee of the company or a passenger; whether, if by an employee, he was one of the crew of the train or an employee off duty; and whether, if not on duty in the running of the train he still was in the emergency which arose acting for the company within the scope of his employment, were submitted to the jury with such clear and accurate instructions that it is conceded that there is no ground for objection to the general charge or to the answers to the points presented. After the charge, at the request of the *50 plaintiff’s counsel, additional instructions were given to the effect that if it was not the duty of the brakeman to collect the tickets, but it was his duty to notify someone of the train crew to collect them, and in the performance of the latter duty he left the car and went out on the platform and negligently pushed the plaintiff off, the company was responsible for his act. The objection urged to this instruction is that it widened the issue of fact by the introduction of a question not raised by the testimony, as the brakeman did in fact collect the tickets in pursuance of his announcement that he would do so, and there ■was no testimony that he went out of the car for any other purpose.

The inquiry was clearly within the limits of the case presented. There was distinct and positive testimony by a number of employees that it was the duty of a conductor or brakeman, not one of the crew of the train on which he was riding, who saw passengers leaving a car without having given up their tickets, to notify some one of the crew and to collect the tickets himself, if directed to do so by the conductor; and that in this particular case it was the brakeman’s duty to go out of the car and give notice to some one in authority. The distinction drawn by these witnesses between doing the thing and notifying some one to do it was not based on a written rule of the company, but on a general understanding that there should be no unauthorized interference with those charged with the management of the train. It was certainly within the limits of their duty, as they understood it, to collect the tickets if they could not give notice to the proper person to do so. The duty was concisely expressed by the answer of one of the defendant’s witnesses : “We are not employed by the company to let people get away with their tickets.”

The brakeman who took the tickets, and whose negligence is alleged to have caused the injury to the plaintiff, left the car at the suggestion of a conductor to see that the tickets were collected. Presumably he went to do what the emergency required. According to his own testimony he passed the plaintiff before he announced that he would take the tickets himself. If the act complained of was done while he was on his way to give notice, it was done while he was clearly in the line of duty; if it was done after he had decided to collect the tickets, and. *51 while on his way to do so, it was still for the jury under all the testimony to say whether he was then acting in the line of duty.

The judgment is affirmed.