141 Pa. 604 | Pa. | 1891
Opinion,
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 ? That 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 the 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 defendant, 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 of the statute ; and certainly, in the absence of a specific request to charge to that effect, 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
The distinctions between this and the other 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, the plaintiff was hauling freight to the cars, and was in a place which this court said was “ practically a part of the yard.” And in Stone v. Railroad Co., 182 Pa. 206, plaintiff was separating the train, which was primarily the work of the railroad 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 plaintiff 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 he widened the
None of the assignments of error can be sustained.
Judgment affirmed.