Cumberland Valley Railroad v. Myers

55 Pa. 288 | Pa. | 1867

The opinion of the court was delivered, July 3d 1867, by

Agnew, J.

— The question now presented is not the same as it was when this case was here before. The error which the court below then fell into was in instructing the jury in substance that the plaintiff could recover: notwithstanding his own fault, want of skill or awkwardness, and notwithstanding there was no negligence or unskilfulness on the part of the engineer, if the mode of detaching the cars was unnecessary and a useless exposure of person. But on the second trial the judge avoided these objections and answered all of the defendants’ points in the affirmative without qualification; excepting the last point, which was qualified by instructing the jury that if the injury was not caused by the drawing of the bolt, but by the negligence or misconduct of the engineer in increasing the motion of the cars with a violent, unnecessary and unusual jerk, such as the plaintiff could not have anticipated, and if this occurred after Myers had resumed his proper position on the platform of his car, the plaintiff might recover. We discover no error in this qualification. Myers was requested by the conductor of the train to cut loose Bryson’s cars at his station, by drawing the coupling bolt. The engineer slackened the speed of the train; and after drawing the bolt, Myers stepped to the side of the car with it in his hand, and held it out, showing it to the engineer, to let him see that the cars had been cut off. The engineer, who was proven to be a quick, impulsive and somewhat reckless man, suddenly let on steam, started the train with a violent jerk into quick motion, which threw Myers off upon the track, where he was overtaken and badly injured by the cars following up by their own speed. Clearly it was a question of fact for the jury to decide whether Myers at this time had fully accomplished the special duty he had undertaken to perform and had resumed his position upon the platform of his own-car, and whether being in this position his being thrown off and injured was caused by the negligent act or misconduct of the engineer. Assuming according to the former opinion that Myers took upon himself the risk of the act he undertook to perform, there is nothing in his case demanding him to be held to very strict presumptions. He did an act of mere accommodation at the request of the conductor without hire or reward, and as soon as he had performed it and resumed his proper position as a passenger on the train he became entitled to the protection which such a relation gave him, and a jury would not be called on to discriminate against him with an unfriendly eye. If satisfied upon the evidence that the injury was caused by the misconduct of the engineer after he had substantially performed the duty and resumed his position, the railroad company, and not he should suffer for the mismanagement of the train by their own employee.

The judgment is affirmed.