176 A. 5 | Pa. | 1934
Plaintiff and others of a train crew of the Crucible Steel Company were placing cars on a track of the Pennsylvania Railroad Company for the purpose of being incorporated into trains of the latter company for transportation. In the course of his duties plaintiff alighted from the cars to turn a switch near a street crossing. After accomplishing his purpose he signalled the engineer to proceed. His next act of duty was to throw a lever on one of the cars to cut it off from the train for switching purposes. Being unable to manipulate the lever from the ground he attempted to board the engine. He put one foot on the running board of the engine tender and attempted to take a step with his left foot. As he did so his foot went into a hole near the end of the ties and only eight feet from the switch stand. The resulting fall threw him under the wheels and his right foot was cut off. It was testified by several witnesses that this hole was eight or nine inches deep, twelve or fourteen inches in diameter and at the time it was filled with water to the surface and so covered by black cinders and soot as to make it invisible to view; it was described as looking "just like the ground." It had existed at that spot, "six to ten inches from the ends of the ties," for at least a month.
Plaintiff was lawfully on defendant's premises, and as the court below succinctly put it, "on business of his employer [the steel company] which was beneficial to the defendant, and it was the defendant's duty to maintain the right of way where men would be working in the operation of cars on its tracks in a reasonably safe condition." In Engle v. P. R. R. Co.,
In the case of Hastings et al. v. South Shore R. R. Co.,
The case before us is squarely ruled by McDonald v. Lehigh Valley R. R. Co.,
There is no substantial difference between the facts in the McDonald Case and those in the case at bar. There the hole was "between the two main tracks." Here the hole was between the main track and a switch. There the hole was at a point where the ground was "ordinarily smooth and level." Here the hole was at a point where the ground seems, from the exhibits, to be "ordinarily smooth and level," and it was described by witnesses as "good and solid" and as "in pretty good condition, hard." It was smooth enough for plaintiff to take "several steps" upon it without difficulty, until he stepped into the hole. In the McDonald Case the hole was at a point which was used as a footway for trainmen and other employees. Here the hole was at a point which was obviously a footway for trainmen and other employees if they had any duties to perform at that point, as this plaintiff had. He testified: "I took several steps from the switch west myself and tried to get the car off with the lift lever." The place where he took these "several steps" was a footway used by the plaintiff in the performance of his duties. No space on a railroad track is used as a footway except when employees have business at that point. That the plaintiff had duties to perform at the point where he was injured is not controverted. After his injury he was found lying eight feet east of the stand of the switch he had just thrown.
The decision in Kerrigan v. P. R. R. Co.,
The decision in Philadelphia Reading R. R. Co. v. Schertle,
In the McDonald Case the trial judge entered a nonsuit. In doing so, he said: "We must confess that under the circumstances of this case, we should have sustained plaintiff's contention were it not for the fact that we interpret the rulings of the Supreme Court in the cases of Philadelphia Reading R. R. Co. v. Schertle,
The court below, in the instant case, refused to disturb the jury's verdict of $10,500 in favor of the plaintiff. Its action was proper.
The judgment is affirmed. *135