
    No. 879
    BAKER v. PENNA. RAILROAD CO.
    No. 20003.
    Supreme Court
    On motion to certify.
    Dock. July 24, 1926;
    4 Abs. 510.
    829. NEGLIGENCE — Where a passenger on a railroad, while travelling on a pass is injured, must the injured party elect in an action for damages, between proceedings on the theory of wanton negligence or ordinary negligence to support the claim for damages?
   This action was brought originally in the Seneca Common Pleas by Oliva Ann Baker against the Pennsylvania Railroad Company for damages resulting from injuries received while a passenger on a train owned and operated by the railroad company.

Attorneys — W. S. Wagner, Walter C. Pharbacker and Frank T. Done, Tiffin, for Baker; Fraser, Hiett, Wall & Eppler, Toledo, and Spittler & Flynn, Tiffin, for Company.

Baker was travelling on a pass although at the time of the accident the pass had not been taken up.

Upon motion of the Company the court required Baker to elect upon the theory which she would pursue i. e. whether upon wanton negligence or ordinary negligence. Baker elected to proceed upon wanton negligence.

The judgment of the Common Pleas in favor of the Company was affirmed by the Court of Appeals.

Baker in the Supreme Court contends:

1. That the court erred in compelling her to elect the theory upon which she would proceed.

2. That the court erred in its charge to the jury concerning wanton negligence.

3. That the company is liable for damages, even though she was travelling on a pass, because the train had travelled more than 15 miles and cash payment could have been demanded thereafter.  