Platt v. Forty-second Street & Grand Street Ferry Railroad

4 Thomp. & Cook 406

Opinion

Taloott, J.

In this ease the referee in coming to the conclusion, that the plaintiff was guilty of such contributory negligence as prevented her recovery, seems to have based this finding wholly upon the fact that she had previously left the car of the defendant in which she had been a passenger, by the front instead of the rear platform, contrary to the regulation of the company.

We do not think this circumstance at all conclusive. If the defendant could only be liable on the ground that the plaintiff was a passenger in its car, perhaps the violation of the regulation might have been conclusive evidence of negligence on the part of the plaintiff. But we do not think that the liability of the defendant necessarily must result entirely from the circumstance that the plaintiff had been a passenger on the car of the defendant. At the time when the accident occurred, the plaintiff had ceased to be a passenger on the car of the defendant. She was lawfully in the public highway, as were also the horses of the defendant; and we think the liability of the defendant, if liable, results not from the fact that it was a common carrier, but depends upon principles that apply to all persons lawfully using the highway; and we do not see how the fact that the plaintiff had been a passenger on board the defendant’s car, and in leaving the same had been guilty of a violation of the regulations, can be considered as proximately contributory to the accident, or could relieve the defendant from such care as all persons lawfully using a public highway are bound to take to avoid injury to others, also lawfully using the same highway. Upon the ground, therefore, that the referee seems to have based his decision solely upon the idea that the defendant owed no duty of care to avoid negligence, by which the plaintiff was injured, except that which was founded upon the relation of carrier and passenger, we must reverse the judgment.

Judgment reversed and new trial ordered.

Rote.—In Pennsylvania R. R. Co. v. Zebe, 33 Penn. St. 318, the reciprocal duties of railway companies to provide safe means of egress from their trains, and of passengers to conform to reasonable regulations in regard to leaving trains, are quite fully discussed. In that case, plaintiff’s son, at a station upon which safe accommodations for exit were provided upon one side of the train, left such train on the other side, and was run into and killed by apassing locomotive. It was intimated, that by leaving on the wrong side of the train the son violated a reasonable regulation of the company, and the relation of common carrier no longer existed on the part of the company toward the son, and a recovery could not be had for the death of the son by reason of the negligence of the company, as such carrier. Upon the general question of the duty of passengers to obey regulations, see P. & C. R. R. Co. v. McClurg, 66 Penn. St. 204; N. J. R. R. Co. v. Kennard, 21- id. 203; Catawissa R. R. Co. v. Armstrong, 2 P. F. Smith, 282; Pennsylvania R. R. Co. v. Ogier, 11 Casey, 71; Toddy. O. C. R. R. Co., 3 Allen, 18; S. C., 7 id. 207; Laing v. Colder, 8 Penn. St. 203; T. & C. R. R. Co. v. Rutherford, 29 Ind. 82. — Rep.