196 F. 866 | 3rd Cir. | 1912
The defendant in error (hereinafter called the plaintiff) was for several years prior to May 6, 1909, employed by the Baltimore & Ohio Railroad Company, plaintiff in error (hereinafter called the defendant), in the capacity of a freight brakeman in the freight yards of the company, situate at Connellsvilie, Pa.
About 6 o’clock on the evening of the day last named, while the plaintiff was employed as a member of a shifting crew in said yards, it became necessary to shift cars onto a certain side track, a portion of which extended along a freight platform built in front of a freight station. This platform was about four feet in height above the rail, so built for the obvious purpose of being flush with the floors of the freight cars placed in front of it for loading or unloading. The length of the platform in question was about 130 feet. The westerly end of the platform is 71 feet east of the switch connecting the main track and the side track. The side track ran along the south side of the platform, and the distance between the side of the car in question and the platform was between 6 and 8 inches.
The plaintiff had worked as a brakeman for the defendant company for about six years. On the day of the accident, he was working as a brakeman of a switching crew consisting of a conductor, two flagmen and himself. This crew were engaged in switching cars out for a fast freight train that was to take them up. In the performance of this duty, it became necessary for the plaintiff, who was stationed at the first switch above referred to nearest the freight house platform, and 71 feet away from its western end, to throw the switch and admit some cars which were being pushed east from the west bound main track onto the siding -in front of the freight platform. Just before the plaintiff threw the switch, the conductor of the train or
On this state of the case, suit was brought in the court below, the plaintiff alleging that the injuries he received were due to the negligence of the defendant. In support of this .allegation, the well-settled doctrine is invoked, that it is the duty of an employer to furnish a reasonably safe place in which the employe is required to. work, and reasonably safe tools and appliances with which to work. After the close' of the evidence, which elicited the material facts .above stated, counsel for defendant requested the court to charge the jury that “the plaintiff has produced no evidence legally sufficient to charge the defendant with the negligence alleged in his declaration, and cannot recover” ; also, “that under all the evidence, the verdict must be for the defendant.” The court then submitted the case to the jury, with an oral charge, and from the judgment .on the verdict in favor of the plaintiff, the present writ of error has been sued out by the defendant.
The first two assignments of error refer to the refusal to charge requests above stated. There are several other assignments of error, as to the refusal of particular points urged by the defendant and as to certain parts of the court's charge to the jury. With these we are not concerned, in the view we take of the facts upon which the principal and primary charge of negligence is made against the defendant.
Railroading is at best a somewhat dangerous employment, and requires and bespeaks reasonable prudence and care on the part of those
It was not only the right btit the duty of the railroad company to provide freight stations and platforms for the convenient loading and unloading of cars. It concerns the public service with which a railroad company is charged, There is nothing to show that this platform, in its location or construction, was tiot built with due consideration and care, not only for the business to be accommodated, but, for the safety of those required to work upon it. Not only so, expert evidence was offered (and. as we think, mistakenly rejected by the court) to show that in the railroad business of the country there was a certain standardization as to the construction of such platforms in regard to their height and distance from the tracks, from which loading and unloading was to be conducted and to which the structure in question conformed. There is no evidence, however, to show that the plaintiff, or any other employe, was required to run along between these cars while they were, moving, much-less that he should do so while passing the freight platform in question, and incur the dangers of so doing. This platform was not a concealed object, or one difficult of observation, and the plaintiff unquestionably-was familiar with its existence and location during the whole period of his long service. Not only was the space between the car and the platform obviously not a place in which the plaintiff or any other employé was required to work, in the manner in which he alleges he was working, or in any other manner, but there is no evidence that at any other time such work was required to be done in that space. There was nothing, therefore, in the situation which could suggest to the railroad company
Manifestly the numerous cases cited on behalf of the plaintiff, to show liability on the part of a railroad company, where structures of any kind are placed -so near the tracks upon which trains are run as to' endanger those operating said trains, have no application to the present casé. The place where those operating the trains — the engineers, firemen, conductors and brakemen — are (required to work is, of course, in and upon the train itself, and there can be no doubt as to the duty of their employer not to expose them. unreasonably to dangers while operating the .train on which they are employed. ■ To refer to only a few of these crises \
In Harvey v. Railroad Co., 166 Fed. 385, 92 C. C. A. 237, the decedent; an engine hostler, was killed in defendant’s roundhouse while sitting in the cab window of an engine about to be taken to a coal chute, by his hips coming in contact with a large post supporting the roundhouse and standing within six inches of the engine cab as it passed. In another case, the company was held liable where a brakeman was struck by a switch target and thrown to the ground from a moving freight car while he was climbing the ladder to release the target, with his back to the switch, of whose dangerous proximity he had no knowledge. Also, where a switchman was killed by being knocked off of a car by the roof of a building in switching yards in the daytime. Also, where a brakeman was knocked off of a car by a guy rope suspended over the track. Where a fireman, ordered by the engineer to take notice of a box on the engine, leans out and is hit by a telegraph pole, which the company negligently allowed to remain so near the track. In Choctaw R. R. Co. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96, plaintiff’s decedent, a brakeman, was killed while in the discharge of his duties on a car in one of the company’s trains, by being knocked off of the top thereof by the spout of a water tank maintained at an insufficient height above the car.
These cases easily distinguish themselves from the one at bar, and it requires no discussion to show how inapplicable their ratio decidendi is to the facts with which we are here concerned. They are all cases where the place in which the plaintiff was required to work, — i. e. the engine or top of a moving train, was rendered unsafe by the negligent placing of obstructions too near the tracks. Being of opinion that the record discloses no evidence of negligence on the part of the defendant