Geiger v. Pittsburgh Railways Co.

Citations

• 234 Pa. 545
• 83 A. 367
• 1912 Pa. LEXIS 684

Syllabus

<p>Negligence — Street railways — Passenger—Contributory negligence — Assault by motorman — Erroneous charge.</p> <p>1. Where a driver of a beer wagon gets into an altercation with the crew of an open summer ear, and while attempting to get on the ear for the alleged purpose of going to the car-barn to complain, which purpose was denied by the company, he is killed by another ear colliding with him, it is reversible error for the court to give no instructions whatever as to what was necessary to constitute the deceased an actual or intending passenger, and to ignore the question of contributory negligence, and to permit the jury to infer that the case turned only on whether the deceased was or was not a passenger, or intending passenger at the time.</p> <p>2. If the deceased was killed while forcing his way into the car from the wrong side, and at an unusual and improper place, he could not have been regarded as a passenger, and the jury should have been so instructed; if he was attempting to get upon the car by climbing over the guard rail from the wrong side, just before he collided with the other car, the mere fact that he had succeeded in getting his feet upon the running board, and even upon the body of the ear, would not be sufficient to constitute him a passenger.</p> <p>3. In such a ease it was also error on the part of the trial judge to leave it to the jury to say whether or not the deceased’s injury resulted from his being struck by the motorman, without giving to the jury any instructions as to the scope of the motorman’s employment.</p>