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Proximate

injured, no harm was done, as the plaintiff, under the finding, cannot recover in any event. It is evident that this finding, if it can be supported by the evidence, must relate to the want of care on the part of the plaintiff at the time he attempted to board the car, and could not relate to any want of ordinary care on his part after he fell and was dragged by the car. The learned judge properly Contributory instructed the jury on the subject as follows: negligence"But it is contended, as you will observe, in this and remote case, that the injury may have been occasioned, cause. not by the fall, but by the dragging of the plaintiff. That circumstance enables me to give you this instruction: Even if the plaintiff was guilty of negligence in attempting to get on the car while it was in motion. yet if the jury find from the evidence in the case that the driver was notified that the plaintiff had fallen, and was being dragged at the tail of the car, and the jury also find that the driver could have avoided the injury by the exercise of reasonable care, then the defendant is liable." It is upon the theory set forth in this instruction that the plaintiff sought a verdict in this case, and it is very clear that there is no evidence even tending to show that the plaintiff was not in the exercise of such care as it was possible for him to exercise after he fell, and was caught by his finger. The material question in the special verdict was the sixth question, viz.: "Was the driver of the car guilty of negligence in not stopping the car when he was notified that the plaintiff had fallen? The instructions above quoted, and to which exceptions were taken, have peculiar reference to this question, and, as we think, must have been understood by the jury as tantamount to a direction to find that the driver was not guilty of negligence in not stopping the car, because the evidence was conclusive that he could not control it at the place where the accident happened.

The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Boarding Moving_Street Cars.-See Stager v. Ridge Ave. Pass. R. Co., 33 Am. & Eng. R. R. Cas. 540; note, 33 Ib. 550.

HAYMAN

V.

PENNSYLVANIA R. Co.

(Pennsylvania Supreme Court, January 16, 1888.)

Passenger Personal Injuries-Presumption of Negligence. The legal presumption arising from injuries sustained by a passenger in the course of the journey that the accident was due to want of proper care on the part of the carrier, has no application in a case in which the injuries complained of were received by a passenger while passing in the course of his journey from the station to a ferry, and were caused by pushing his hand through the glass of a swing door at the entrance to the ferry landing, such door being no part of the machinery employed for the carriage of passengers, and being constructed in the same way as swinging doors to be met with in any place of business.

ERROR to Court of Common Pleas, Philadelphia County. Trespass on the case by Joseph Hayman against the Pennsylvania R. Co. to recover damages for personal injuries. Plaintiff brings error, to review a judgment of nonsuit.

Jacob Singer and Emanuel Firth for plaintiff in error.
David W. Sellers for defendant in error.

Facts.

WILLIAMS, J.-The complaint of the plaintiff in error in this case is that the court below directed the entry of a compulsory nonsuit on the conclusion of his evidence. The sole question for consideration, therefore, is whether the evidence was sufficient to sustain a verdict in favor of the plaintiff. The facts disclosed by it are that the plaintiff had purchased a ticket from the defendant company entitling him to carriage from Philadelphia to Burlington, New Jersey, and was proceeding from the ticket office to the boat on which a part of the journey was to be made. His route was through a long, narrow passage intended to accommodate persons passing in single file. At the end, near the landing, was a door, the upper half of which was provided with glass, and which swung either way, to permit the passage of persons to and from the boat. The person in front of plaintiff passed out at the door, leaving it to swing back behind him. The plaintiff put out his hand to arrest his motion, and push it open again, and, instead of directing his hand towards the frame or wooden portions of the door, pushed it against

of negligence

the glass, which broke under the force of the impact, and let his hand through, cutting it, and inflicting the injury sued for. This was the whole case, and upon it the plaintiff contends that he should have been allowed to go to the jury upon the ground that the mere happening of the injury raises prima facie a presumption of negligence, and throws the burden of disproving negligence on the carrier. In support of this position, he cites Laing v. Colder, 8 Pa. St. 474, and several cases following it. The authority of these cases is beyond question, but the applicability of the rule established by them to this case is not. The rule requires that a carrier of passengers shall exercise "the utmost degree of Presumption care and diligence" to secure the safety of its pas- does not arise. sengers. To this end, it must provide a safe roadbed, well-constructed cars, engines, and skilful, trustworthy servants to take charge of the movement and management of trains. All these things are under the exclusive control of the officers of the company. The public have no right, and no opportunity, to interfere in regard to them. When, therefore, a passenger is injured by a collision, or other accident, while on his journey, the law presumes the accident to be due to want of proper care on the part of the company conducting the transportation, and puts the burden of showing the actual condition of the track, the car, or other appliances involved in the accident, upon the only party in a condition to bear it, viz., the carrier, which has the exclusive possession and care of it. The legal presumption takes the place of the proof which the injured person is unable to make, and puts the carrier at once upon the defence. Laing v. Colder, supra; Meier v. Railroad Co., 64 Pa. St. 226; Railroad Co. v. Anderson, 94 Pa. St. 358. But the reason ceasing, the rule ceases. If an intoxicated person, after having purchased his ticket at a railroad station, should, on his way out of the ticket-office, stumble upon a heated stove, and suffer serious injury, there would be no reason for excusing the injured man from making out his case because he had a railroad ticket in his pocket, or because the stove on which he fell belonged to a railroad company, or was standing in a railroad station. It was no part of the machinery of transportation, and was in no sense peculiar to the business of the railroad company.

The same thing is true of the case in hand. The plaintiff was injured in the waiting-room or passage-way leading to the wharf, by putting his hand through the glass in the swinging door. The door was no part of the machinery employed for the carriage of passengers. It was not built upon a pattern peculiar to the defendant company. So far as the pleadings or the plaintiff's evidence enables us to judge, it was

constructed like the swinging doors to be met with in places of business in every part of the country. It was certainly visible to all comers and goers passing between the waitingroom and the boat, for it was so located that all passengers were obliged to push it open in passing to and from the landing. If there was anything in the construction of the door that made it unfit for the purpose for which it was used, or the place at which it was located, it was easy for the plaintiff to show it by a multitude of witnesses. There was no reason, therefore, for resorting to the legal presumption of negligence in aid of the plaintiff's case. The cause of the accident and the erection and construction of the door were as clearly known to the plaintiff as to the defendant and its employers; and it was the duty of the plaintiff to make out his cause of action in this case as he would be bound to do if the swinging door had been in a hotel or store. Not having done this, the court was clearly right in ordering the nonsuit. Judgment affirmed.

Presumption of Negligence in Case of Injury to Passenger.-See Patter v. Chicago, M. & St. P. R. Co., ante, 399, and note, 404.

ATCHISON, TOPEKA AND SANTA FE R. Co.

ข.

JOHNS.

(Kansas Supreme Court, June 11, 1887.)

Personal Injuries--Negligence of Servants-Evidence-Sufficiency.--The evidence showed that three servants of a railroad company, a brakeman and two section foremen, in removing a trunk from where it lay, on the company's station platform, which was covered with ice, to a baggage car, slid it on the ice, and out of a straight line, and against the plaintiff, who was standing in plain view upon the platform. Held, that the evidence was sufficient to prove culpable negligence on the part of the railroad company's servants.

Same-Scope of Employment--Presumption. In such case, as the servants were then on the company's premises, performing this duty for the company, in the presence of other servants, and as they had performed similar services on prior occasions, it will be presumed that they were acting within the scope of the authority given to them by the railroad company.

Same-Contributory Negligence.-An old lady went to a railroad station to assist friends, who intended to remove from the country permanently, to get to the station, and upon a train then about to depart, and after bidding her friends good-bye, and after they had got upon the train, stood for

about five minutes upon the station platform to see the train start, and to bid her friends a last farewell. Held, that while so standing upon the platform, she was not, by reason thereof, guilty of such culpable contributory negligence as would prevent her from recovering for injuries received through the negligence of the railroad company; and further, that no culpable contributory negligence in any respect was shown.

Evidence-Declarations-Pain and Suffering.-Declarations of a party with regard to a present and existing pain or suffering, or with regard to the present condition of the body or mind, may generally be shown by any person who heard the same; and no material error was committed in this case by the admission of evidence tending to show the declarations of the plaintiff with regard to pain, suffering, and condition of the body.

ERROR to District Court, Greenwood County.

Action brought by Mary Johns against the Atchison, Topeka & Santa Fe R. Co., to recover damages for injuries received by her while standing on the station platform at Severy, by reason of the negligence of the defendant's servants in removing a trunk from the platform to the baggage-car of a train then standing at the station. The defendant brings error.

George R. Peck, A. A. Hurd, and C. N. Sterry for plaintiff in

error.

T. J. Hudson, T. L. Davis, and R. P. Kelley for defendant in

error.

VALENTINE, J.-The facts of this case, stated briefly, are substantially as follows: On February 6, 1883, the plaintiff, Mrs. Johns, who was then about 63 years of age; Facts stated. went to the railroad station at Severy, Greenwood

County, Kansas, along with certain of her friends who were then about to start for Washington Territory to make it their permanent home. She went along with her friends to assist them in getting to the railroad train and upon it, and to bid them good-bye. These friends were Mrs. Pitzer, who was also an old lady about the plaintiff's age, and Mrs. Pitzer's daughter and son-in-law and their several children. This station is a union station or depot belonging to the Atchison, Topeka & Santa Fe R. Co. and the St. Louis & San Francisco R. Co. These two railroads cross each other at that place at right angles,-the Atchison, Topeka & Santa Fe Railroad running north and south, and the other railroad running east and west, and the station is situated in the south-west angle formed by this crossing, immediately west of the Atchison, Topeka & Santa Fe Railroad, and immediately south of the other railroad. A platform, about 16 feet wide and 195 feet in length, is situated between the station-house and the defendant's railroad track. This platform at that time was covered with ice, and had been in that condition for several days. The railroad train upon which the plaintiff's friends expected 34 A. & E. R. Cas.-31

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