'fAYLOB
flA PENNSYLVA.NIA
00.
is said, by the ,supreme courHn Heydenfeldtv. Mining 00.,93 U. S. 634: "If a literal, interpretation of any part of it would opetate unjustly. 0," lead to absurd results, or be contrary to the evident meaninj:!; of the act taken asa wholl3, it should be rejected." See also Ohurch of the Holy Trinityv. U. S., 143 U. S.457 t 12 Sup. Ct. Rep. 511. In our judgment, section 838, taken as a whole. clearly declares that the districtattorlley is entitled to compensation for services renpered in all cases reported to him for, examination under its provisions, regardless of the question whether suits are in fact instituted or not; and this clearly expressed purpose is not to be changed or modified by reason of the ambiguity created by the phrase" upon the certificate of the judge beJorewhom such <lases are tried or disposed of." These words can be construed SO as to give a,n hnmlonious meaninF; to entire section, and the liteml construction of the particular clause must yield to the broader meaning demanded by the se<ltion as a whole. . ] nview of this eonciuliiion, the judgment of the court below must be and ia ailirwtlJ. TAYLOR fl. PENNSYLVANIA
Co.
(Ctrtnttt Court. N. D. Ohf.l>, E. D. May 9, 1892.) No. 4,767.
L
C.tllWT1mI!-41'lURJES 'rO
Ie
J,\I "n aetion against a ,railroad rompany for Injuries to a passenger due to the pressure of a crowd passinI!' its I!'ates to a train, plaintlfl' and anotber witnellswstlfied tbat but one of the Jive gates WI'S open. Heveral witnellses for defelldant testified tbat all ,the gates were opon, but they had other duties to perform at the train which would interfere witb tbeir obsel vation on this point, and tbe gate keepers and policemen stationed at the other four were not examined. 11eltl. ,tbat a Iinding by tbe jury that but one gate wa open would not be disturbed on motion for new trial. OP CAR,B.
TRlAL-WEJIlUT OP EvmJll'OlL
B,Ufl!:.....bJI·RII!:S AT
A carrier is to ,the highcst degree of care as to the condition of Its engines. cal'S, bridges. and otber appliances. because negilg-ence as to them involves extreme peril topastlengers; therefore, as a passenger's detention at a depot, or bis exit to the trl;lip, is not atten,ded Wilh the bazards pel·taining to tbe journey ('n the cars, the d('p;i'ee of care Is justly lessened to the extent that at su<!b a time and at sucb a 'place the carri!'r is bound to exel'Cise only a rell.!lOnlloble degree of care for the protection 01 its passengers.
"
,
8.
Wbere a railroad companY,by means of advertisements and reduced rates, Inc1ucl4;ls an unuRu,,1 crowd to collect at it!l stations. it is bound to o!le such means as are re<1!1onably necessary to prevent injury to individuals from t.'he conduct or pres, Inre of tbe crowd In passing to and from its trains. Where, on account 01 the failure of tbe railroad Ilompany to use luch suftlclent means of prevention, a passenger is jammed agaim,t a raililll!'j and !lustains injurt"", to her '!Ijline. whick resull In paralytl18 of bel' legs, anI! dlsallllity for liIe. a verdict for dlllDagcs is
8A,l\III:-CROWllI:'iO AT STATJO:'I's-NsnJ.IGI!:)\'CB.
, . SAMIl-UUIAIlIlS.
At Law. Action by Sarah E. Taylor agoinst thePennsyivania Compan." to recover damages for personal injuries. A ,;erdict was rendered for $.'),500, and now moves tor a new triol. Denied. Jolm M. Sttdl, F. E. Hutchins, and Hobert B. Jlurray, for plaintiff. J. R.Carey'!Ind W.'O.. Boyle, for defendant. : "
ifhe
,..
this suit ,t9rCilcover
seriousmjul'y sustttbled by'her',in.theUnionlJepot iIi while shewa8about to pass out of one ofqthe exitgatelf through"which passengers were required togo' torea.ch the cars. The depoti'as under the conttol of the defendant dompany, and the plaintiff, when injured, was a passenget going to the train which was operMedby the defendant, and destined for Nih,s, Ohio, where she resided. She 'had purchased an excursion ticket on that day good for one trip frorriNiles to Pittsburgh and return, and withe. very large number of people had visited the latter city on the occasion of the Allegheny Bicentennial Celebration. The defendant company, and other railroads cimterihg in Pittsburgh,had extensively advertised this celebration, and e8chof them ha? industn<?usly solicited people to attend. It continued for three days, and the testimony shows that during each of these days ber of passengers had. been received and discharged from a the Union Depot than evet:before. The plaintiff was one of tinpreShe 'had left Niles in the morning,tl'ansacted her business in Pittsburgh, and returned to the depot about 4 M., and there awaited the proper opportunity to pass from the depot to the corridor and exit gates to her train. While so waiting in the depot reception room she heard announce: the train,for Youngstown, when she proceeded to. the, large door leadi11g from the vestibule to the corridor, and, having shown her ticket tosome of!icerhaving a badge upon his coat, he passed her out into the vestibule, which was then nearly full of the passengers waiting for the gates totoi\e;n'i1o that "sl;le CQuid proceed,'to her train. 'The crowd increased in Ilumbers rapidly ,andJ;loon was so closely packed behind and aroul)d.<her 'as to malie it impo$Sible for her to retreat or to move in She described the jam as so dense that she almost suffocated, 'and said she was from 10 to 15 minutes in passing from the reception I'oomto the gate. As soon as it opened, the, crowd began to move, and' she moved' w.itbit, 'and, when she reac,hedthe iron railing constructed toto.rn people to the narrow exit of the gateway, she was, by e. sudden surging oOhethrong; forced and jaillmed agait;J.'st tbe railing, and so injured in her spine as to paralyze her lower limbs, and permanently disable her. The case wlU\ submitted, toa jury,and a verdict returned for the plaintiffrllssessing her damages in the sum of $5,500. The defp,ndant has filed' its motiQn to set aside this verdict, and for 8 new trial. . That the accidentoccurredaubstantially as above described is clearl, estn.blished by t46 The,two impor1;antlssu'es of fact SUbmitted to the jury Were: 'Jili"at, did the defendant exercise ordinary care inpra:viding a suitable force of officers and employes to properly control and direct the movement Of the unprecedented throng which 'it was advised would crowd through.'its depot rooms, vestibule; corridors, and gates to reach its trains? and, aecond, did the defendant,: regardless of the unusual crowd to be cared for and controlled, undertake to force it through one exit gate to the trains, and thereby cause unnecessaryjamming and jostling and and, faplt on the plaintiff's part. force her against thel'ailing,i sind, injure her; 8S already stated?: ','
767 The defendant had sooonstructed its depot that from the ,spacious cor-. ridol'l in which this large crowd oongregated, five exit gates were provided through which passengers could go to their differe>nt trains. The plaintiff and one other witness testified that but one gate was open at the time the accident occurred, and that all the vast crowd was force4 through that single gate. Four witnesses for the defendant testified that all five of the gates were open. The only gate keeper whose testimony was taken was the one stationed at the center gate, about which there was no dispute. The other gate keepers, and policemen stationed with them, at the other four gates, were notexaminedj and it was argued with force to t11e jury that their absence was suspicious, and that the witnesses who testified that those four gates were also open had other important duties to perform, and did not observe the gates closely enough to know whether in fact they were open or not at the time of this accident. There was no special finding as to these facts, and I am the,fir fore not advised as to what the conclusionofthe jury waaas to this msue. It may have been in favor of defendant's contention, and yet the ju.rymayhave concluded that upon the other issue, ,as to the exercise of ordinary Care to provide. plaintiff a safe exit, the defendant was negligent in Dot proViding a sufficient force to control the crowd. But assuming that the jury found that the gates were not all open at the time of the accident, and that thereby the results befor,e'stated followed, such finding is not so clearly against the weight of evidence as to justify me in disturbing it. The only remaining question, therefore,·is, did the defendant exercise ordinary care in providing a suitable force to properly control and direct the movements of the unprecedented crowd then in its custody? The evidence' offered by the defendant was that it made applic!ttion to the chief of police of Pittsburgh for an force of patrolmen, and got all it wanted, and that at the time of the accident it had from 20 to 40 policemen, and, with its own employes, had about 100 men in and about the depot to direct and control the crowd in its approach to the depot, while in the depot; and while going to the trains. Upon the subject oithe defendant's duty to care for this crowd, the jury were given, the following instructions: "The plaintiff was injured within the depot inclosures of the defendant, .and while she was making her way to her train, as one of a very large crowd ,of passengers. The first important question to determine is, whatwas the kind and degree 'of care and protection which the defendant owed to her under the circumstances shown in evidence and at the time of the injury? A pasBenger While in actual progress on his journey is necessarily exposed to innumerable hazards: is wholly under the care of the carrier: and in view of -these dangers, which he can in no respect control, the law imposes, upon /luch .carrier the greatest possible vigilance as to the passenger's safety, and holds it responsible for the slightest negligence. This degree of care. Is fixed not solely becaUSe of the relation of c'ar,rier and passenger; it is measured by the .consequences which may follow the want of care. A carrier is held to this highest degree of care as to the condition of its engines, cars, roadway, bridges, and other appliances, because negligence as to any of them involves .extreme peril to passengers, against which they cannot protect themselves. alit a fuleproperly ceaseswitb the reason for it. Therefure, as a passenger'.
151 to bls ttall1. is not attended wlthtbe bazJIlU1I,a1aingtothe jourqey on the cars. running at a rapid rate of speed; is Jq8t1y,les8ened to th(!.extent that in such a a ti".le.the carrier isi>ound to eX.\lrclseonly a reasonable for the of its passengers. , This reasonable and ordinart upon the circumstances particular case. and 18 st1db'care'as' R of reasonable and ordinaryprlidence and skill would usually 6lCercise under the same or similar circumstalMles. Nuw. apply this t.o 'fhedllfendant was bound to use such reasonable care. as ·.In providing' for the safety and, protection of its passen/(ers anil, while being conducted to its trains. with due regm:d to the numbers aud' character of tIIOSII on its premises. aod with due reference,to the risks and dangers to which they were, expoiled. It was bound to pruvide a suitable nllml1er from its own officers and employes. or from the city'p',Uce furnished. to assist it In properly controlling said crowd. and proteCJipg,Inen. wowl'n. andJlhihlrell In it from violence, because of the unruly orboisterou8 of any thereof. Hut it was not bound of policemen for every pasfor every 81111\1) group of passengers,; to protect thew from physical injury becllllse'of the violence of sotne of theIr own number. It Was only bound to fU'rnlsh humher of olOcers and guard8 as would Insure the pel't..1t, anll keep the crowd in proper control. 80 as to ord..r, Rnd towards the tl'aln. Whetherllllch 8uitable numb..r ot offi,cer!l, tint.! guardS ,w8.'1 furnished In, tltls ,Case i8 for you. glmtlemen of the jury. to dt'lermin8 from 11.8 thevexistet.! at and about the timeof tile ,Qllcldent.' ,'fhat was the temp..r ltlid character of the crowd? WitS itboistel'Un8 and unruly. composed of drunken or excited men, bent on vifllence and disorder. or w::s It a good-natured. onlerly cl'owd. willin/t to be COlltrulled;ItUd directed In its movements? The witnesst'S for the plaiotitf <:rowd as orllerlyand ji)uy. If this \VaS its spirit alld disl'0sitiDn, was thel'll.B nllllluer of guards aOll officers to direct and control it,?· You have heard the evidence as to the number theile, employl'8 of the defendant. of the t'xtraforce on duty, and of the detail of city police, a8 to how the1:\\'ere' stationed. what tltitHlS were assigned to each. and how they dilclllll'R'I"d ,those ,:'fhe defendant Was ad IIJuch obligatl'd to protect plIlIl:\engerll frol)l pickpockelsand roul{hs as from violence from the sudden QlovenH'1I1sof It yOll think the special and extra precautiOI!8 taken Lytlefemlant \fere pl"tlp..rand sllllicientlo control anti dil'ect that crowd (,ollectively. and tolnsilre to thelll as a bUlly that kind uf care which I hllVedl:'liiwll, then the def.. tlllallt woulU not be liahre. for an injury inllictl'd upon the phlintllf lIy a 8udden and unexpel·ted jam or 'BUI'gin!t of sume of the paSHe!,I!ters ahoutthe phlj,miff. w,ho "'tlre not withill.thlt illlllll'tlialtl cIJDlrol or reachuf tlefen,lant'selllp'/oyeB or the po(ice. so that they could have Bnti"ipatetllt, and gua6,ietl Illlilillst it. ,As I ,'have stated. the defendant could not be heldto that of d'j]lgence fol'& for every It. was not'bou,nil policenlll:ll (01' each person. to protect and defend, him or of fequ", passengers. But it was bound to furnish a of its uwn ullll'el's or police to properly control, as a body. stich a, crOWd to ,the extent alTt-ady stated. It' you lind this. .. it duty to tue plaiutHI. and caonot be heltllialJle f(lr this Injury,OJ ' ,, "
4.teatloirtafi...
Tbese, instrtlotions correctly.statethelaw as applicable to the caSe. The of care to. which the deletldant was heltI in its relution and duty to the plaintiff at,the time, of accident 'Was just. Under these instructior.s"th¢jurymus't have found that thp defendant did not use such t.u cuuLrw that C!'uwd,
TAYLPB fl. PENNSYLVANIA 00. '. :', ... ,t
,759
and In reacbingtbis conclu'8ton,they doubtless. took Hito cOllsideratioil' the fact that the crowd was 'verymuch greater in numbers than .ever before called upon to contrbl and transport. They. were there, nowever, by aht'ssolicitatioli. It had all the means within its power necessary to keep it advised of the rapid of passengers coming on every train and from every direction. Itscar>acities and facili 7 ties for handlipg were well a,nd had been theretofore repeatedly tested. The people 'who started on their journey from every town a1ld city within reach of Pittsburgh could not measure the volume of the crowd they Were to meet when 'th,ey reached that city, and Could not, therefore, intelligently calculate the risks they were to assume when they became a pltrt'thereof at the de'pbt to which they we,re all transported. , The defendant's passengers were therefore Dot chargeable 'kDowledgeof the dangers incurred by accepting itS its ducements to visit Pittsbrirgh'on 'thls occasion.' They had the right to suppose that the precautions to be taken for their safety and protection would be commensurate with the increased dangers confronting them. Of these increased dangers, the defendant had the first and most trustworthy warning. I am disposed, under these circumstances, to hold it to the full measure, of care defined in my cha1'ge. "The defendant took her place in the open space in close proximity to the exit gates to await her opportunity to KO to her train. Thisapace, and the vestibule within 'he depot, were sufficient to safely and comfortably hold the ordinarily in def4;l[ldant's care. It may even be conceded that the spaces named were 8ufficipnt for extraorfiinary occasions." But they were so packed' and jammed on this day as to the dangers greater than ever before. The crowd immediately, surrounding the gates, waiting to be passed through, 'W'aspermitted to becometoo densefor proper control or safe exit. The police and guards, as they were stationed, were unable tokeep the crowd' bapk. Whether' they' were not stationed at the most suitable pla:ces, or because they were not active and energetic enough, is not for :me now to determine: The jUry' fonndwant of ordinary care in some of these respects, and I am not justi'fiedin saying such a conelusion is not supported by sufficient evidence. The jury wer.e certainly not moved by passion or .prejudice in reaching their conolusion.The amount of the verdict indieatesthat very'conservative influences' controlled them in their deliberations. The plaintiff has been a great sufferer, and is totally disabled fQr life. The damages lJssessed are, .under these conditi()ns, as reasonable as the defendant Could expect, a,nd indijurors were noigoverned by excitement or undue symcate that ' pathy. The result may have a wholesome effect. If railroads make prodigious efforts, by offering low rates, and by and captivating adto ,travelover their vertisements, to secure a greater number of lines than can satelyandrea!,!onablYqlrefor at their terminal points, and accidents follow, th(ly must answer for the risks thus 888umed. :Thetravf',ling public maybe justly subject to criticism for going in wch 88.
'760 :1li#f,'ijumbers, ,and assuming' the extr" hazards thereby inrailrol\dcompallies bound to take prerisks they have imllosed on. the thus lDvlted. What, would constltute ordmary care m taken for a crowd of 5,000 might not be ordinary the crowd numbered ,The traveler, as one of 10,isentiUe<ito the o( care that is due to him as oneOfq,POO. If the, which the 10,000 passenits rOa9cannot give to }hem this proper measure ot an injury thereOy..follQws, it is responsible. It cannot invite and' passengers than its capacity justifies, itself by claim,ing an unprecedented crowd, and that to the,pa§sengers in its depot was used. For these reasons disturb verdict as found by the be overruleq, l\n<ljudgment entered.
'fqr
SA<IITR q,. MISSOURI' P'A'd. Ry. 1.1,'"'
.(CwcUiU CO'I:.rt. W.D.MJB8oUri,W; D. ,Karch 7,'1899.) ,
.. '. ;
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Where; in an action agaiDsta railroad company for the death of an emc i;>rlglnQJ. pe.titionproceeus entirely on the gl'ound of the company's negligencl'l in, el;ll.ploying an engineer ot knol,Vn ,illcomvewnce, an amendment which claim's on 'th'e',ground of the engineet's n6'gUgence merely, introduces a new cause of action, and does not relate back to the. ,filing of the original petition, so as to eSCl!ope par of theone-year limitation prt;llcribed by Rev. Mo. § 4429.
At!4w. rA¢tion by Kate.Sl1lith againet Pacific way Compa.i)i for damages for ca\lsing the d.eath of her husband. Hgarq.oll .to the,nmended petition. Overruled as to the_first COllnt, aato the second. ' i Hager'lnan, for plaintiff. ;The original ,petition was founded on the second section of the damage a<:t. bein.g section 4425. &e\'. St,ModS89. The cause of action stated in the secondcln)nt the petition is, tpe Same cause of actlon as that stated in thefirst cOllnt, beiIlg the killing,of the husband of tbe plaintiff through the t!6gligence' Of the servant of the defendantin running and managing its locomotive erigi'ne·. Both counts of petition are founded on the same section of the statlltElj' the measure of damages being the same in each. It is not the substitution of another and new cause of action, but an amendment. v, ftla8ner.79 Mo. 449, Judge PHILIPS, in delivering the opinion of the court\slloYs: "Two.,tests.by whjch we determine whether a second petition or a ,of a new ca4se of action are: (1) That the both petitions; (Z) that the same measureof damages will apply to both. If both of these fail, the pleading is not an amendment"'! See. also, Lottman v. Barnett, 62 Mo. 159; (}oU1'ley v. Railw4yaO., 30 Mo· .App.: 87; Land Co. v. Mingea, {Ala.) 7 Soutb. Rep. 666; Kuhm v. Railway Co., 76 Iowa, 67.40 N. W. Rep. 92: Dougherty v. Rail-