Murray v. Pennsylvania Railroad 173 Pa. 74

Edward Murray, Appellant, v. The Pennsylvania Railroad Company.

Negligence — Railroads—Passengers—Alighting from, moving train.

In an action to recover damages suffered by a passenger while alighting from a train, a nonsuit is properly entered where the evidence on behalf of the plaintiff shows that plaintiff while a passenger on defendant’s railroad heard one of the defendant’s employees announce the station at which he wished to alight, that he rose from his seat, went out upon the platform, and while the train was still in motion stepped off and was injured ; that after the station was announced the train continued to move slowly in order to let a passenger train that was going the other way and was in the station move out; that it was dark at the time of the accident and plaintiff stepped off, believing that he was being carried beyond his station.

Argued Nov. 1, 1895.

Appeal, No. 195, Oct. T., 1895, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1893, Nov. 743, entering nonsuit.

Before Stekrett, C. J., Green, Williams, McCollum, Mitchell, Dean and Fell, JJ.

Affirmed.

*75Trespass for personal injuries. Before Kennedy, P. J.

At the trial it appeared that plaintiff on September 12,1893, in the evening, was a passenger on one of defendant’s trains, and that he was bound for Wilmerding Station. He was sitting in a smoking car, and as the train approached the station he heard some one cry out Wilmerding. He got up and went out on the platform. The train had slowed up as it approached the station, in order to let a passenger train that was going the other way and was in the station, move out. Plaintiff described the accident as follows:

“ I seen others rising before me, between me and the door, and a good few got up before me, and the last man I seen him going down those steps. He stepped on his right foot, the way the train was going. I said, ‘ The train must be dead stopped.’ . .. . The last man he went out of the train, and he stepped back the way the train was going, and that convinced me, and I said to myself, says I, ‘ If I don’t get off I’ll be taken to the next station.’ I said distinctly to myself, ‘ If I don’t get off I’ll be taken to Walls, and I'll have to walk back in a dark and dirty, ugly road, if I don’t get off.’ I went down the steps fair and easy, and I put my left foot out first, and looked at the platform to see if I could see a move on that train or hear a stir, and I never seen or heard a stir on that train, and I put that foot out first, and it was sliding from me like that — just like a sliding scale. I come down the steps then (I was standing on the platform), I walked down easy like on the platform to make myself sure, and see if there was ere a move on it, and I couldn’t feel or see no move on that train; it was dead, as I thought; if I did I wouldn’t, perhaps, have come out. Q. When you stepped off you found it was going? A. Yes, sir. Q. As soon as your foot stepped on the ground ? A. If it was on a slow motion I would have been all right. Q. And it whirled you around and threw you under the car behind? A. Yes, sir. Q. You didn’t think it was going ? A. I didn’t see it moving or stirring. Q. You didn’t see it moving a bit? A. No, sir. Q. It was rapid enough to throw you down? A. My foot slided down as if it was on ice, and I couldn’t pull it back, and couldn’t recover. Q. Did you feel the train start before you stepped off the step ? A. No, sir; I didn’t. Q. You lay there by the side of the train until this passenger came and picked *76you up ? A. Until the train went by me. Q. You stepped off with your left foot? A. Yes, sir; I stepped off with my left foot. Q. Did you step with your face towards the front of the train or toward the bade ? A. I was facing the back of the train. Q. Facing the back of the train? A. Yes, sir; I was facing, when I went down the steps, if that’s what you mean; when I went down the steps I was facing the steps, and I looked down the platform to see if I could see a move; and I put my foot down and I was thrown on the left side down under the car, and my hand catched the rail when I fell. Q. Your head was towards the way the train was going, and your left arm under the train ? A. My left foot and legs was back of the train. Q. You were on your back? A. Yes, sir; when I fell. Q. You thought the train was just as much stopped when you got off as it had ever been before? A. Well, you know all about it, I suppose.”

Plaintiff’s witness, Scott Freeman, testified that the train never had stopped until it reached its regular stopping place in the station, and that it ran about three car lengths after Mr. Murray got off, and stopped opposite the shed at its usual stopping place.

The court entered a compulsory nonsuit which it subsequently refused to take off.

Error assigned was in refusing to take off nonsuit.

E. J. McKenna, Chas. F. McKenna with him, for appellant,

cited on the question of defendant’s negligence: White v. R. R., 88 Pa. 327; Smith v. B. & O. R. R., 27 Atl. 848; Enches v. R. R., 135 Pa. 194; Kohler v. R. R., 135 Pa. 346; R. R. Co. v. Alvord, 128 Pa. 42; Leslie v. Wabash St. R. R., 3 West. Rep. 50; Somers v. Boston & A. R., 141 Mass. 10; Negligence of Imposed Duties, 139; McNulta v. Eusch, 31 Ill. 10; Phila. & R. R. v. Edelstein, 23 W. N. C. 342; Phila. W. & B. R. R. v. McCormick, 124 Pa. 427; Hannibal R. R. v. Clotworthy, Am. & Eng. R. R. Cases, 372; B. & O. R. R. v. Chambers, 32 Atl. 201; White v. R. R., 88 Pa. 327; Johnston v. R. R., 70 Pa. 357; Lyon v. R. R., 129 Pa. 113; Kilgore v. R. R., 32 Pa. 292.

Geo. B. Gordon, William Scott with him, for appellee.

*77January 6, 1896 :