379 Pa. 562 | Pa. | 1954
Lead Opinion
Opinion by
This is an appeal by defendant under the Act of April 9, 1925, P. L. 221, sec. 2, 12 PS §682, from the refusal to enter judgment in its favor following a verdict for the plaintiff in a trespass action brought under the Federal Employers’ Liability Act of April 22, 1908: 35 Stat. 65 (1908), as amended, 45 U.S.C.A. sec. 51 (1946) et seq. Defendant contends that plaintiff’s contributory negligence was the sole proximate cause of the accident. The learned court below refused defendant’s motion for judgment non obstante veredicto, but granted a new trial because of error in the charge, the verdict was against the weight of the evidence, and was excessive. Plaintiff did not appeal from the grant of a new trial.
In Buffo v. Baltimore & Ohio Railroad Company, 364 Pa. 437, 72 A. 2d 593, a case arising under the
The Federal Act bars assumption of risk as a defense and provides that contributory negligence is not a complete bar to recovery, but may be considered in diminution of damages. A railroad is not an absolute insurer against personal injuries suffered by its employes and there is no liability where the employer is not at fault. Evidence of negligence, howevei*, even though slight, necessitates the submission of the case to a jury: Buffo v. Baltimore & Ohio Railroad Company, supra.
Ralph E. Bishop, the plaintiff, was a conductor on a freight (coal) train operated by the Montour Railroad Company. He was injured when alighting from the defendant’s moving train near a switch stand by stepping on a large lump of coal which, it is conceded,
The order is affirmed. Costs to abide the event.
Dissenting Opinion
Dissenting Opinion by
The complaint in this case is based on the allegation that defendant Railroad Company did not furnish plaintiff with a reasonably safe place in which to work. I do not find in the testimony that the accident happened at a place where plaintiff was, or ever had been, called upon to work, and therefore I do not think that it was the duty of the defendant to keep the space between its rails and ties at that point free of lumps of coal.
I therefore dissent from the refusal of the court to grant judgment n.o.v.