Opinion
November 21, 1951.
January 7, 1952.
Negligence — Taxicabs — Stopping for passenger — Distance from curb.
In a trespass case, in which it appeared that plaintiff hailed a taxicab which stopped for her about a foot and a half or two feet from the curb, and that plaintiff lost her balance and was injured when, to avoid water in the gutter, she attempted to enter the cab in one step, it was Held that the evidence was insufficient as a matter of law to establish negligence.
Before DREW, C. J., STERN, STEARNE, LADNER and CHIDSEY, JJ.
Appeal, No. 184, January T., 1951, from order of Court of Common Pleas No. 7 of Philadelphia County, March T., 1949, No. 5726, in case of Olga Schickel v. Yellow Cab Company of Philadelphia. Order affirmed.
Trespass for personal injuries.
The facts are stated in the opinion, by BLUETT, J., of the court below, as follows:
On October 17, 1947, about 6:45 P.M., plaintiff and her sister and the sister's two children were walking North on the East side of Twelfth Street between Market and Filbert Streets, Philadelphia. Twelfth Street is a one way street with traffic going south. They saw a taxicab coming South on Twelfth Street, hailed it, the driver pulled over to the West side of the street and stopped. The front of the cab was pointing toward the curb and the rear extended out on "sort of on an angle". At the place where the cab pulled into the curb there was a space between parked cars where "maybe two cars could have got in there", and there was a distance from the cab to the right side of the curb of about a foot and a half or two feet. It was described as "a long step to the curb". It was just beginning to get dark and different colored lights gave an impression that the cab was closer to the curb. Plaintiff and her companions crossed to the West side of Twelfth Street to the West sidewalk. Without leaving the cab the driver opened the door to allow plaintiff and her companions to enter. There was water in the gutter which plaintiff saw but thought she could safely step into the cab in one step to avoid the water. As her foot touched the bottom of the cab floor she lost her balance. To avoid falling backwards she braced herself, but hit her head on the top of the cab door and was injured.
The case came on for trial before BLUETT, J., with a jury on October 16, 1950. At the close of plaintiff's testimony, defendant's motion for a non-suit was granted. Plaintiff's motion to take off non-suit was before the Court for consideration.
There was no contention that there was any defect in the taxicab, and it was, therefore, the burden of the plaintiff to establish negligence. Nebel v. Burrelli, 352 Pa. 70 (1945).
Under the testimony of the plaintiff it would seem to be clear that there was not sufficient evidence to permit the jury to decide that the driver of the cab had stopped in a dangerous place or had done anything of a negligent character in the handling of the cab. A cab company has no control over public streets and highways. The only duty of cab drivers as to stopping on these streets is not to stop at a place where it is obviously unsafe or where a reasonably prudent person would believe that it contained manifest characteristics of potential harm under the circumstances. MacDonald v. Phila. Rural T. Co., 147 Pa. Superior 220 (1942).
There were no such characteristics of potential harm in the case before us. There is no testimony that the driver even knew that there was water in the gutter, and the driver had no reason to believe that he had stopped his cab in a place of danger to plaintiff. There is no duty on the part of the driver of the cab to assist a passenger in getting in or out of the cab unless it is clear that the person is physically or mentally incapacitated or has requested assistance. There was no such condition or request in the instant case. Jameitis v. Wilkes-Barre Ry. Co., 277 Pa. 437 (1923); Pierce v. Delaware, Lackawanna W. Rwy. Co., 358 Pa. 403 (1948).
The plaintiff was a young woman of thirty-three or thirty-four years of age. She saw the water. If there was any danger in the presence of it she should have been aware of it and she should have requested assistance from the driver or have asked the driver to change the position of his cab. As she did neither, any injury she may have sustained was the result of her voluntary act and she may be charged with contributory negligence. Scanlon v. P. R. T. Co., 208 Pa. 195 (1904); Mahoney v. P. R. T. Co., 214 Pa. 180 (1906).
The Court was of the opinion that the plaintiff had failed to show negligence on the part of the driver of the defendant cab and that any injuries she sustained were the result of her own voluntary act, and that, therefore, the entry of the non-suit was proper.
Plaintiff's motion to take off non-suit was refused.
Plaintiff appealed.
Samuel Kravitz, for appellant.
James J. Leyden, for appellee.
The order is affirmed on the opinion of the learned court below.