Christman v. Phila. R.
21 A. 738
Pa.
1891
Check Treatment

Opinion,

Mr. Justice Mitchell :

The assignments of error raise two questions:

1. Was the plaintiff on the footing of an employee of the railroad company, under the act of 1868 ? Thаt act includes persons “ lawfully engaged or employed on or about the roads, works, depots, and premises of a railroad company, or in or about any train or car therein or thereon.” Whether thе place of the accident was the premises of the railroad company was left to the jury as a question of fact. The land on which the siding was laid, and the tracks themselves, were not the property of the defendant, but of the rolling-mill, and were used from time to time as required by the convenience of the mill, by defеndant, and also by the Cornwall & Lebanon Railroad Company, under conditions which were in evidence by parol. It is not clear that the place was the premises of the railroad company, within the meaning оf the statute ; and certainly, ‍​‌​‌​​‌​‌‌​‌‌​​‌​‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​‌​‍in the absence of a specific request to charge to that effeсt, it was not error to leave the question to the jury. But, in either view, this point was unimportant, for the plaintiff was not employed *613or engaged in any business connected with the railroad. There was a pile of iron on the grоund of the rolling-mill, and plaintiff was engaged in carrying it into the mill. The iron had in fact been unloaded from the cars thе day before, but the act of unloading bad been fully completed, and had no connection with plaintiff’s work. So far as that was concerned, there was no difference whether the unloading was the day before or the year before. So, also, the fact that when unloaded it had been piled up between the twо tracks had nothing to do with plaintiff’s work, except that it involved the incident, immaterial so far as the nature of his work was concerned, that he had to cross one of the tracks in going to and fro between the pilе and the mill. If the iron had been piled between the track and the mill, his employment would have been exaсtly the same, and yet he would not have had anything to do with the track. As said in Richter v. Pennsylvania Co., 104 Pa. 511, plaintiff’s “ business was not with or about the railroad, or its cars, but about the iron-works, .... and he became neither an employee nor quasi employee of the defendant, simply because he attempted to remove ‍​‌​‌​​‌​‌‌​‌‌​​‌​‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​‌​‍one of its cars from his path.” That ease, in fact, is so closely on all fours with the present that it is unnecessary to do more than refer to it generally for the principles by which this is to be ruled.

The distinctions between this and the othеr cases cited are obvious. In Cummings v. Railway Co., 92 Pa. 82, the plaintiff was on the ear assisting in ‍​‌​‌​​‌​‌‌​‌‌​​‌​‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​‌​‍unloading. In Balt. etc. R. Co. v. Colvin, 118 Pa. 230, thе plaintiff was hauling freight to the cars, and was in a place which this court said was “ practically a pаrt of the yard.” And in Stone v. Railroad Co., 182 Pa. 206, plaintiff was separating the train, which was primarily the work of the railroаd employees, but which the evidence established was his duty, in case ‍​‌​‌​​‌​‌‌​‌‌​​‌​‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​‌​‍the others omitted it. It was railroad business, and while he was engaged at it he was put by the statute in the position of a quasi employee.

2. Was the plаintiff so clearly guilty of contributory negligence that the court was bound to say so, as a matter of law ? Plaintiff was there in the prosecution of his work. The iron was between the tracks, and he necessarily had to cross one of them to get to the mill. The iron bars were from twelve to twenty feet long and to facilitate his work hе widened the *614passage between tbe cars by taking .out tbe coupling. While engaged at bis work be saw .tbe shifting engine go up on the defendant’s road, and, after continuing bis work for about fifteen minutes, tbe thought occurring to him thаt the cars on the .switch which he was crossing might be shifted, he replaced the coupling, and as he started аcross the track for another bar of iron the cars were jammed together and the injury happened. Much stress was laid by appellant on the fact that plaintiff had been employed on or about the switch for several months, and had knowledge of the danger during the operation of shifting. This fact was sought to be used to show that he was within the act of 1868, but had no bearing on the nature of his actual employment at the time of thе injury. It was, however, relevant as showing knowledge which bore upon the question of negligence. But this knowledge had a double edge. While conveying notice of danger, it also conveyed notice of the time ‍​‌​‌​​‌​‌‌​‌‌​​‌​‌‌​​​​‌‌‌‌​‌​​‌​‌‌​​​‌​‌​​​‌​‌​‍likely tо elapse and the warning customarily given, before the danger became imminent. It was in evidence that, after the plaintiff saw the engine go up, fifteen or twenty minutes were occupied in coupling the cars to be taken out and getting the train together. It is also in evidence that the two cars between which the injury occurred were not defendant’s cars, and were not to be taken out. Under these circumstances, it cеrtainly was not plaintiff’s duty, immediately on seeing the engine go up, to cease work and stand idle for the fifteen or twenty minutes required in the operation of shifting. How long he might prudently continue at work, and what amount of obsеrvation he was bound to give to the progress of coupling the ears and approaching his locality, depended on too many elements to enable the court to say there was any fixed standard of prudent conduct to which he was bound to conform. That, under the circumstances in evidence, was a question for the jury.

None of the assignments of error can be sustained.

Judgment affirmed.