343 Pa. 342 | Pa. | 1941
Opinion by
Plaintiff, Acanthus B. Casseday, instituted this action in trespass against his employer, Baltimore & Ohio Railroad Company, under the Federal Employers’ Liability Act (Act of April 22, 1908, c. 149, 35 Stat. 65), and also against M. J. Hannon and R. A. Hannon, under the common law, to recover compensation for personal injuries sustained as a result of a collision between a truck, owned by the Hannons, and a freight train, owned and operated by defendant railroad. The jury returned a verdict for plaintiff and against all defendants. Upon plaintiff’s acceptance of a reduction in the verdict, motions for judgment n. o. v. and for a new trial were refused. From the entry of judgment on the verdict as reduced, defendant railroad alone appealed.
The accident took place at about 4:30 o’clock on the somewhat foggy morning of August 20, 1937, in a rural
Since the Hannons did not appeal, the sole question here for our determination is whether or not plaintiff has alleged and proved any negligence on the part of defendant railroad for which he can recover damages. Defendant railroad admits that the cars in this train
The acts of negligence which plaintiff alleges in his statement of claim, and to support which he offered testimony, are the placing of the freight car on the siding at Baxter, and the inadequacy of the lights and whistle on the caboose. The placing of freight cars on sidings or spur tracks is usual and necessary in the operation of a railroad and the conduct of its business.Therefore, an employee, such as plaintiff who had served for thirty-seven years as a freight conductor and for more than forty-two years as a railroad employee, is conclusively presumed to have had knowledge of any ordinary risks and dangers, if there are any, incident to freight cars standing on sidings. It would be absurd to suppose that a conductor of long experience would be ignorant of the fact that it is the most common practice to place freight cars on sidings, which are constructed for that use, and that frequently necessity requires that they be placed in close proximity to public highways. We said, in McCully v. Monongahela Ry. Co., 289 Pa. 393, 399: “Employment on a railroad exposes one to many dangers . . . that are incident to the engagement, but these dangers are assumed to be guarded against by attention necessary to protect one’s self. . . . The federal act does not eliminate the defense of assumption of risk (except as it involves the violation of a federal statute) ; all of the former effects of this doctrine remain as they were at common law: Seaboard Air Line v. Horton [233 U. S. 492], p. 503; Jacobs v. Southern Ry., 241 U. S. 229, 235; Boldt v. Pa. R. R., 245 U. S. 441, 445.”
It is admitted by plaintiff that at the time the train left the terminal that morning, it was equipped with standard lights and with better than a standard whistle, both of which had long proven effective under regular conditions. Plaintiff’s case is devoid of any evidence from which even an inference could be drawn that the storing of the car on the siding caused any irregular condition whatever which could possibly have rendered these lights and whistle inadequate. Moreover, the rules of defendant railroad required that a man and at least one white light be upon the leading platform of the caboose. That this rule was fully complied with is clearly shown by'plaintiff’s own testimony. It discloses that two brakemen were on the platform of the caboose, one of whom alighted at the switch about 57 feet from the crossing, the other remaining. Plaintiff, who had been in the caboose making out reports, also came out upon the rear platform when the train was about 25 feet from the highway. There were two white lights on the platform and
The learned trial judge, in his opinion refusing judgment n. o. v. and a new trial, stated as the reason for his action that “The jury could well conclude that the injury to the plaintiff was partly due to the failure of the plaintiff’s fellow-employees to properly perform their duties.” This statement was clear error under the pleading and the proof. There is no allegation in the statement of claim that plaintiff was inj fired by the negligence of fellow-employees, and the trial was entirely free of any evidence, offered for such purpose, upon which the jury could base such a conclusion. In fact, the learned trial judge refused plaintiff’s motion for leave to amend his statement of claim so as to include an allegation of negligence on the part of his fellow-employees, and then eliminated from his oral charge that portion dealing with the possible negligence of the brakeman in sounding the warning of the train’s approach to the crossing. The court could not have granted the motion, since it would have introduced a new cause of action after the Statute of Limitations had run: Andrews v. Marsden, 278 Pa. 56, 58-59; Martin v. Pittsburg Rys. Co., 227 Pa. 18, 20-21. But to have relied upon it, and used it as the reason for supporting the verdict, it being the only possible ground available to prevent judgment for defendant railroad, was error.
Judgment reversed, and here entered for defendant railroad company.