SILINSKY ET UX. v. PA. R. R. CO., 355 Pa. 499 (1947)

50 A.2d 293

Silinsky et ux., Appellants v. Pennsylvania Railroad Company.

Supreme Court of Pennsylvania.December 4, 1946.
January 6, 1947.

Negligence — Railroads — Starting train while passenger alights — Evidence.

In an action of trespass, in which it appeared that plaintiff was injured as she alighted from defendant’s train after it had stopped, it was Held that the evidence was insufficient to establish that defendant started the train while plaintiff was alighting from it.

Argued December 4, 1946.

Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.

Appeal, No. 246, Jan. T., 1946, from order of C. P. No. 1, Phila. Co., Sept. T., 1944, No. 2511, in case of Stephen Paul Silinsky et ux. v. Pennsylvania Railroad Company. Order affirmed.

Trespass for personal injuries.

The facts are stated in the opinion, by BROWN, J., of the court below, as follows:

This action in trespass was brought by Stephen Paul Silinsky and Anna Silinsky to recover damages from The Pennsylvania Railroad Company for injuries to wife plaintiff alleged to have been caused by the negligent starting of defendant’s train while she was alighting from it at Clifton-Aldan Station, Pennsylvania, at about 3:30 P. M. on June 12, 1943.

At the conclusion of plaintiffs’ evidence upon the question of defendant’s liability, defendant’s attorney moved for a non-suit, and following argument by counsel and consideration of the testimony, the motion was granted and a non-suit entered by the trial judge. Plaintiff’s motion to take off the non-suit was argued before the court in banc, and after the evidence was reviewed the motion was dismissed.

Wife plaintiff and her daughter were passengers on defendant’s train from West Chester to Clifton-Aldan Station, and when this station was announced by defendant’s

Page 500

employee, they moved to the platform of the car in which they had been seated. The train having stopped, they proceeded to alight. The daughter stated: “I got down and reached for the grip from mother, who was following. I placed it on the ground and as I turned around mother was in the air. Then she fell.” Her mother testified: “Then my daughter got off first. I was on the bottom step. I handed her the suitcase and I started to get off, and just as I went to step off the train I felt this lurch, and the first thing I knew I felt myself in the air somehow, and that was all I knew.” She also said that after that “the first thing I remember was that somebody was giving me a drink of water”, but she was not sure who it was.

The negligence averred in plaintiffs’ amended statement of claim was that while wife plaintiff was “undertaking to step from” the car in which she had been riding, the train started and moved forward “with great suddenness, force and extraordinary motion”, and “in such manner” that she was “thrown off” the car. But there was no evidence to support this allegation. Indeed, there was no proof that when the train had come to a stop at the station it moved at all until after she had fallen on the landing-way. At the most, the testimony established that she felt “this lurch”, but neither she nor her daughter stated that the train started while she was alighting from it, and no other witnesses were called to describe what occurred.

The cause of “this lurch”, which wife plaintiff said she felt, did not appear. She may have lost her balance when she handed the suitcase to her daughter (for it was heavy and took both the latter’s hands to place it on the landing-way), swayed or staggered as she “went to step off the train”, and so felt herself “in the air somehow”. The word “somehow” indicates that she was not clear in her own mind as to what happened. Although the words “this lurch” were in the same sentence with the word “train”, the ordinary use of words indicates

Page 501

that the adjective “this” applied or referred to the noun “lurch” immediately following it and not to the preceding phrases “and just as I went to step off the train”. If she had previously or then stated that the train started, “this lurch” might well have referred to the movement of the train, but, as pointed out above, there was no testimony that the train was in motion at all until after she fell.

Neither the mother nor the daughter testified that the former was “thrown” from the train. The use of the word “thrown” by plaintiffs’ attorney in asking the mother “whether or not the train stopped after you were thrown”, and in the question he asked the daughter: “As your mother was thrown, as you described it, what was her position on the landing-way when she reached it”, was merely an expression of his own idea of what occurred, and did not supply evidence which was lacking. Although the mother answered “No, sir” to the question whether or not the train stopped after she was thrown, that, too, added nothing, because she had not said that the train started when she was alighting from it or at any time after she fell. In fact, she testified she did not know what happened after she “felt herself in the air”, that the first thing she remembered was somebody giving her a drink of water, but she was not sure who it was. Hence, her answer to the question was entitled to no weight.

The contention that wife plaintiff’s testimony, that “just as I went to step off the train I felt this lurch, and the first thing I knew I felt myself in the air somehow”, presented “a reasonable inference that the train was started prematurely with a sudden jerk and that it was this premature starting with a sudden jerk that caused her to be thrown from it”, was without merit, for it was based upon an inference from an inference. It recognized, however, that the essential fact that the train was started prematurely while she was alighting from it had not been proved. It was apparent, therefore, that

Page 502

no connection was shown by competent proof between “this lurch” which wife plaintiff said she felt and any movement of the train.

The absence of testimony upon which to base a finding that there was negligence in the operation of the train required the entry of the non-suit.

The motion to take off the non-suit was, therefore, dismissed.

Plaintiffs appealed.

Charles Edwin Wallington, for appellants.

Theodore Voorhees, with him Philip Price, Barnes, Dechert, Price, Smith Clark, for appellee.

PER CURIAM, January 6, 1947:

The order of the court below is affirmed on the opinion of Judge Francis Shunk Brown, Jr.