
    Philadelphia and Reading Railroad Co. v. Edelstein.
    In an action for damages for personal injuries caused by the alleged negligence of the defendant, a railroad, the plaintiff testified that, on a dark night, he entered a passenger train of defendant, taking the front oar and occupying a seat near the front door; and that after the train left G-lenside, some one called out “ The next station is Jenkintownthat the train then went on, and afterward came to a stop, and that some one out of the baggage-car, a person dressed like a conductor, called out11 Jenkintown;” that he then alighted from the train at the front platform, and while in the act of stepping down, placing one foot upon the ground and then stepping with the other foot, he fell down through a bridge. He further testified that he went out of the ear in a great hurry, that he “ rushed out of the door and off the steps; and did not see the station or any lights.” He also testified that he had only been to Jenkintown once before, and that in the daytime. The defendant offered evidence to prove that the train was stopped before reaching the station on account of an accident to another train and that passengers were told to remain seated. The court submitted the question of negligence and of contributory negligence to the jury, charging that it was for the jury to determine whether it was contributory negligence for the plaintiff to step off the platform on a dark night without seeing that there was a station there. Held not to he error.
    Feb. 7, 1889.
    Error, No. 91, Jan. T. 1889, to C. P. Montgomery Co., to review a judgment on a verdict in an action of trespass for personal injuries, at March T. 1888. Williams and McCollum, JJ., absent.
    Plaintiff testified as follows, at the trial before Swartz, P. J.:
    “ I went down to the station at Edge Hill and got tickets for Jenkintown ; at about two minutes after this, I got on the train, and when I got to G-lenside a man came in the car and called out: “ The next stop will be Jenkintown,” and then we went on, and then the train stopped and the man opened the door and called out Jenkintown, and he went out one door and [I went out the other in a great hurry; went out, and I thought I am in Jenkintown, and I fell right down and I couldn’t see how I stepped; when he called out Jenkintown the train was stopping; when I stepped out I fell right straight down; I fell into the creek]. . . . [The night of the accident, it was very dark and kind of icy; it was raining and freezing;] in the train, I was sitting in the front ear next to the engine, that was the smoker; was sitting in front of the water closet, and after a while the baggage master came in; I thought he was a baggage master; he had clothes on like the conductor; he opened the door and called out and went right back, and I in a great hurry went out, and I stepped off and fell- down under the bridge. . . .
    Q. (By a juryman.) Did you fall through the bridge?
    A. I don’t know, I didn’t strike anything, I fell right straight;, nobody told me no„t to get off; nobody told me that passengers could not get off at that place; did not hear anybody call me; the reason I got off there I thought it was the depot, I thought it was Jenkintown. . . . [When I got on the platform it was very dark; could not see the station, it was very dark; could not see any lights ; saw no station there; it was pitch dark; did not stand on the platform and look around; was in a hurry and I just went down as quick as I could ; rushed out the door and off the steps, and after I went off the steps I fell right down; think I went down three steps; I walked down these steps and then stepped on the ground; tried to step further; stepped on something, could not tell what, and the next step I made went right down; could not tell that I stepped on the ground and then stepped off; stepped on something and then stepped again and went right off; that was right close to the car.] ”...
    The plaintiff also testified that he had only gone to Jenkintown once before the accident, and that was in the day-time.
    The defendant introduced evidence to prove that the train was, ■stopped at a reasonable distance above the bridge by reason of an accident having occurred to another train, that such stoppage at that point was necessary for the safety of travel; and that, when the train did so stop, the person in charge of the front car announced to the passengers in the car that they should remain seated, that the train had not yet reached the station. The baggage master testified that it was his duty to call out the stations, but denied that he called ■out the station “Jenkintown.”
    At the conclusion of plaintiff’s testimony the defendant moved for a compulsory non-suit. Refused. [1]
    The first paragraph of the charge of the court was as follows: “ Henry Edelstine seeks to recover damages from the Philadelphia and Reading Railroad Company by reason of an injury that he sustained, alleging that the causo of said injury was the negligence •of defendant company. He says, and he is corroborated in this by the person having charge of the railroad station at Edge Hill, that he purchased two tickets at Edge Hill for Jenkintown on January 6 last. He further says that he entered upon the passenger train, taking the front car and occupying a seat near the front door, and that after they had left Glenside some one called out “ The next station is Jenkintown”; that the train then went on and afterward came to a stop, and that some one out of the baggage car, a person dressed like a conductor, as he remembers it, called out “Jenkintown ”; that he then alighted from the train at the front platform of the car he was occupying, and while in the act of stepping down, placing one foot upon the ground and then stepping with the other foot, he fell down through the bridge and was injured, and suffers from that injury to this day. This is his allegation. . . .”
    The court further charged, inter alia, as follows:
    [“Was he guilty of contributory negligence?] Because it matters not how guilty the defendant company may have been of negligence, how far short they fell in their duty to the plaintiff, if the plaintiff failed to take such care as a reasonable man of ordinary •care and prudence would have taken under similar circumstances, then he cannot recover. If his failure to take any precaution that he ought to have taken, contributed in any degree to the accident, he cannot recover, although the defendant company may have been, negligent. [You will say,] if you find with the plaintiff, [whether it was contributory negligence for him to step off of the platform on this dart night without seeing that there was a station there.] You will remember what information he had as to the locality — that he had only been down to Jenkintown once, as he testifies, if you believe his testimony, and that in the day time; and you will say whether he acted differently from what any other reasonable man would have acted who exercised ordinary care and prudence under such circumstances. [Did he act, in stepping off that train, as a reasonable man of ordinary care and prudence would have acted under similar circumstances ?] That is the degree of care that had to be exercised by him; no less would suit the case. If you find that he was guilty of contributory negligence, that is the end of the •case. . .
    Yerdict and judgment for plaintiff for $1,000.
    
      The assignments of error specified the action of the court, 1,. in •overruling the motion for non-suit, and in refusing to grant the •same; 2, in charging the jury as in brackets, quoting it, and in not •charging the jury, as matter of law, that the same was negligence on part of plaintiff; 3, in having undertaken, in the opening of the ■charge to the jury, to state what the plaintiff said and, after doing so in part only, emphasized it by saying “this is his (the plaintiff’s) ■allegation,” and in omitting to state or even refer to any of the plaintiff’s testimony in relation to his negligence, such as that in brackets, quoting it; 4, in not charging the jury that the plaintiff’s •testimony established the undeniable fact of his own contributory negligence; 5, in charging the jury that it was possible for them to ■find for plaintiff, under the evidence; 6, in not directing the jury to find for defendant; and, 7, in not charging the jury that, as the plaintiff was guilty of contributory negligence, he could not recover.
    
      James Boyd, for plaintiff in error.
    The only question intended to be raised is that of con tribu tory negligence. If the negligence •of the party injured contributed in any degree to the injury, he cannot recover. Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Monongahela City v. Fischer, 111 Pa. 9. The testimony of the plaintiff proves contributory negligence.
    Even if the servants of the company were negligent, that will not excuse contributory negligence on the part of the plaintiff. Reilly v. Green & Coates Street Ry. Co., 4 W. N. C. 273; P. & R. R. R. Co. v. Boyer, 97 Pa. 92.
    It was not within the scope of the authority of the baggage master to call the stations. Coller v. Frankford & Southwark R. R. Co., 9 W. N. C. 478; Flower v. Pa. R. R. Co., 69 Pa. 210. Plaintiff was bound to make an effort to learn that it was the .conductor who called out Jenkintown.
    When certain acts which are alleged to be acts of contributory negligence, are undisputed, the question of negligence is one for the •court and not for the jury. Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; West Mahanoy Twp. v. Watson, 116 Pa. 344; S. S. Passenger Ry. Co. v. Trich, 117 Pa. 390; D. L. & W. R. R. Co. v. Cadon, 120 Pa. 559.
    
      
      Henry C. Boyer for defendant in error.
    Error does not lie for a refusal to grant a non-suit. Bavington v. R. R. Co., 34 Pa. 358 Mobley v. Bruner, 59 Pa. 481.
    Plaintiff’s negligence is to be determined by his own testimony as to his actions at the time of the accident. If they do not prove contributory negligence, the other questions were matters of disputed fact and for the jury to determine.
    It was immaterial whether it was the baggage master or conductor that made the announcements. As the baggage master testified, without contradiction, that it was his duty to make announcements. Coller v. R. R. and Flower v. R. R. do not apply. The duties of a baggage master, if disputed, are a question for the jury. Arnold v. Pa. R. R. Co., 115 Pa. 139.
    The evidence in this case f ully establishes the negligence of the company. Pa. R. R. Co. v. White, 88 Pa. 333; Gaynor v. Old Colony R. R. Co., 100 Mass. 208; Brooks v. Boston & Maine R. R. Co., 135 Mass. 21; Taber v. D. L. & W. R. R. Co., 71 N. Y. 493.
    The effect which is to be attributed to an announcement of a station, is for the jury, if circumstances show that the announcement was made so as to induce the person injured to believe that the next stop of the train would be at a station at which he might safely leave the train. Patterson’s Railway Accident Law, 262.
    Where the degree of care varies according to the circumstances, the question must be submitted to the jury. L. V. R. R. v. Greiner, 113 Pa. 600.
    In this case there was no third agency and the last two cases-cited by plaintiff in error, relating to proximate cause, have no bearing on the case.
    Feb. 18, 1889.
   Per Curiam,

We were asked by the learned counsel for the plaintiff in error not to reverse this case unless we could do so without a new venire, for the manifest reason that another jury might, and probably would, increase the damages. We do not see our way clear, however, to reverse it at all. It was a case for the jury. When the announcement was made by the conductor that the next stoppage of the train would be at Jenkintown, the plaintiff below, who was a passenger, had a right to suppose, when the train stopped shortly thereafter, and some one called out Jenkintown,” that it had reached that station. In point of fact, the train had been signalled and stopped short of the station. No notice was given to the passengers that the train had not reached the station, nor was there any caution to remain in their seats. The plaintiff got off hurriedly, he thought the train had reached the station; it was a dark rainy night and freezing; when he stepped down he fell into a creek and was injured. We might perhaps think the plaintiff was not as careful as he should have been; the fact is possibly so ; but that was for the jury, and they have found in his favor. It was properly submitted, and the judgment is therefore

Affirmed. A. B. W.

Cf. P. W. & B. R. R. v. McCormick, decided Feb. 25, 1889.  