267 Pa. 227 | Pa. | 1920
Opinion by
This action is under the Federal Employers’ Liability Act of April 22,1908, ch. 149, 35 TJ. S. St. 65, to recover for injuries resulting in the death of Tulio Trifelli, a section hand employed in defendant’s yards at Susquehanna, Pennsylvania. At the close of plaintiff’s evidence a compulsory nonsuit was entered because of failure to show negligence on part of defendant and the further reason that decedent assumed the risk of the accident resulting in his death.
Decedent’s duties required him to assist in repairing tracks, cleaning switches and removing rubbish, ice and snow in defendant’s switching yard, which contained nineteen parallel tracks. On the day of the accident he, with others, was engaged in removing an accumulation
In so far as the question of defendant’s negligence is concerned the facts here bring the case directly within Ærkfetz v. Humphreys, 145 U. S. 418. In that case plaintiff, while working in defendant’s switching yard, was struck by an engine moving slowly and with nothing to obstruct his view of its approach. The court held the ringing of bells and sounding of whistles on passing trains and yard engines moving forwards and backwards would tend to confuse workmen and that failure to give warning of the character indicated did not constitute negligence on the part of the railroad company. The cases cited by appellant as establishing a rule contrary to that indicated above are distinguishable from the present on their facts. For instance, in Van Zandt v. P., B. & W. R. R., 248 Pa. 276; Glunt v. Penna. R. R., 249 Pa. 522, and McGovern v. P. & R. Ry., 235 U. S. 389, the accident occurred while the injured person was engaged in work on main line tracks. The same distinction appears in Seaboard Air Line Ry. v. Kœnnecke, 239 U. S. 352, where decedent was killed by a train in the act of entering the yard from the main line track, the basis of the decision appearing from the following quotation (page 355) : “The jury might have found that the case was not that of an injury done by a switching engine known to be engaged upon its ordinary business in a yard, like Ærkfetz v. Humphreys, 145 U. S. 418, but one where the rules of the company and reasonable care required a lookout to be kept. It seems to us that it would have been impossible to take the case from the jury on the ground either that there was no negligence or that the deceased assumed the risk.”
The court below was also right in holding deceased assumed the risk of the dangers of his employment. He was of mature years and had been employed in the yard for two years. There was nothing unusual or unexpected in the manner the engine was moving. It was
Under the decisions referred to above and the particular facts of this case there was no duty on defendant to give notice of the approach of the engine and no circumstances were shown tending to relieve deceased from incurring the risk necessarily incident to his employment.
The judgment of the court below is affirmed.