McQuilken v. Central Pacific Railroad

Pee Curiam. We cannot say that the court below ought to have granted a nonsuit on the ground that plaintiff’s evidence showed the negligence of the mother of the infant plaintiff proximately contributed to the injury. The position of defendant’s counsel is that where a railroad company has provided a platform on one side of its track, on which passengers may alight, an attempt of a passenger to get off on the other side is negligence per se. We think that the fact, if proved, that the mother of plaintiff attempted to alight on the side where there was no platform is to be taken in connection with the other physical conditions proved; the question whether she was guilty of contributory negligence to be determined by the jury upon all the evidence bearing on that question.

The act or omission on the part of a plaintiff, claimed to have contributed to the injury, must have direct relation to the act or omission charged to be negligence on the part of a defendant. Whether the attempt to get from the platform at the rear of the car to the ground was, under the circumstances proven, negligence, and whether such negligence was to any extent an immediately concurring cause of the injury, were matters to be decided by the jury.

The cases cited by appellant do not sustain its position —in view of the facts proved in this case, in Pennsylvania Railroad v. Zebe, 33 Pa. St. 318, it appeared that a passenger got off “on the wrong side” and stepped upon another track, where he was injured by a moving train. There was a platform on each side of the tracks within the depot, and trains frequently met at that [465]point. It was said that the passenger who voluntarily got off his ear and on the track on the inner side could not recover in an action against a railroad company, unless there was gross negligence on the part of the latter in permitting the passenger thus to leave the car. The question did not arise upon nonsuit, but upon a request of the trial court to declare the law or “ state the point,” that if the plaintiff “ voluntarily and negligently” placed himself where he did, when there was a safe mode of exit, and full opportunity to use it, the defendant was not liable as a common carrier. (P. pp. 323, 324.)

A second judgment for the plaintiff in the same action seems to have been reversed for error in permitting two witnesses to testify that they were in the habit of getting off on the same side the train as did plaintiff. (P. 423.) It is plain such evidence was inadmissible.