171 Pa. 581 | Pa. | 1895
Opinion by
The plaintiff was a brakeman in the employment of the corporation defendant, and had been engaged in that kind of ser
The car did not belong to the defendant. It belonged to another company and came to the defendant for transportation over the railroad of the defendant in the regular course of its movement. The defendant was legally bound to receive and transport it under article XVII. sec. 1, of our constitution, which provides that railroads, “ Shall receive and transport each other’s passengers, tonnage and cars, loaded or empty, without delay or discrimination.”
When this case was here before, 164 Pa. 17, our brother Dean, delivering the opinion, said, “ While every road must obey the mandate of section 1, article XVII. of the constitution, ‘ to receive and transport .... cars loaded or empty, without delay or discrimination,’ of another connecting road, yet by no reasonable construction, can that be held to mean cars of another road not in a condition for transportation, or not provided with the appliances which ordinary care requires, for the reasonable safety of train crews in properly handling them.” He also said, “ The measure of duty of the receiving
Of course, this measure of duty cannot be higher than the duty owing by railroad companies to their own employees in respect of the appliances which they are required to furnish on their own cars. That duty is fully discharged if the appliances are such as are in ordinary use though they may not be the best or the safest for the purpose. If the evidence in any given case shows that the appliance was such as was in common use, it is the duty of the court to pronounce upon the case on its merits, and not to send to the jury the question whether it was sufficient for the protection of the employee against accidents.
This consideration renders it necessary for us to examine the testimony and ascertain the state of the evidence on this question in the present case.
The plaintiff’s complaint is that the freight car in question was not provided with grab-irons or hand-holds on the end of the car sufficient for his protection from falling. The defendant’s reply is that it was provided with steps for the use of the brakemen which were so constructed as to answer the purpose of grab-irons or hand-holds, as well as of steps, and that freight cars having such appliances were in common use, and were sufficient for the protection of the brakemen, if used with ordinary care. There is no question that the iron steps on this car were so constructed that they could be used as hand-holds, and that they were sufficient if actually used. The plaintiff admitted on cross-examination, though with considerable reluctance, that in performing the act of uncoupling the car from the tender he did actually use one of the steps on the end of the freight car while he stooped down, reached the coupling pin and withdrew it, so that the uncoupling of the car was completed successfully and he resumed an erect position, using only the appliance provided. He was asked, “ Q. You pulled the pin with one hand? A. Yes, sir. Q. What did you take hold of with the other hand ? A. I had nothing to take hold of. Q. Did you
It is thus seen that, upon the plaintiff’s own testimony, after he pulled the pin he stood up on the narrow beam or deadwood with his back against the car, let go his hold of the step, stepped to the right side of the car, gave the signal to the engineer by moving his hand up and down beyond the side of the car, then endeavored to return to the iron step, took one step towards it and was taking the second when he lost his balance and fell. He had passed successfully from the iron step to the-side of the car on the beam and attempted to return in the same way when he fell in taking the second step. Of course he took the chances supposing that what he had just done he could do again. This is verified by his further direct examination: “ Q. What uses are made of these handles on the front end of the car? A. To steady yourself while you are there, to get-hold of to use for protection so you won’t fall off. Q. This car would have been all right then if it had this hand-hold that you talk about on the end of the car? A. Had something there to get hold of I don’t think I would fall off. The Court: Yes, if the witness can answer the question direct let him do so, if he cannot let him say so. A. On the front end of the car if there was a handle there I think it would be all right sure. Q. And you have seen plenty of cars like this, except you say,
Richard Fitzsimmons, one of the plaintiff’s witnesses, having said that he had been a brakeman since 1883 on a number of different railroads, was asked by plaintiff’s counsel, “ Q. I wish you would tell the court and jury what are the ordinary and usual appliances on the ends of freight cars in use on different roads? A. Well they generally get hand-holds on the side, some has got their ladder crawling up to. the top on the sides, some of them has got it in the center of the car, that is in the middle ; I have seen lots of them that had hand-holds right in the center where there was no steps for crawling up in the center. I have seen them then the opposite—have them on the sides; I have seen them without no hand-holds at all, only just the hand railing crawling up to get on top of the car—that is what you call the ladder I suppose. . . . Q. You say that sometimes these hand-holds are on the end near the side of the car? A. I have seen them without any hand-holds there at all—just
As the foregoing testimony was given by the plaintiff it must be taken as a fact proved in the case that cars were in common use which had a ladder or iron steps without any hand-holds on the end of the car.
Another witness for the plaintiff, Thomas May, who was one of the brakemen on the train when the accident occurred, and who examined the freight car in question, said, “ Q. The iron steps that you speak of were like' these iron steps on this picture, Ex. C? A. Just the same, yes, sir. Q. They were in the center of the car ? A. Yes, sir. ... Q. You were shown Ex. D and you said the brakeman could not take hold of that horizontal rod there when he uncoupled the car. Looking at Ex. C he could take hold of the step that had a hole in it, as
John Berry, another of plaintiff’s witnesses, after saying he had been a brakeman for five years, and was familiar with the different kinds of freight cars in use, was asked, “ Q. So that there are a great variety of freight cars in use ? A. Quite a lumber, yes, sir, quite different. Q. And they differ in their construction? A. Mostly, yes, sir. Q. Where they have these steps, the steps take the place of a ladder? A. Yes, sir.” Thomas May, being recalled, was asked, “ Q. How many different railroads that you know of use cars with the iron step-s on one end and a'stem winder brake? A. Why, the Central of New Jersey uses them and the Pennsylvania uses them. Q. The Allegheny Valley Railroad uses that style? A. I call all of them Pennsylvania cars. Q. That you include ■—The Allegheny Valley? A. Yes, sir.”
The foregoing testimony was delivered by the plaintiff on this subject and it was not contradicted by any witnesses on either side. It established that there were many varieties of freight cars in common use differing greatly as to their appliances for the use of the brakemen, some of which were only ladders at the end with a single hand-hold on the side, others with ladders on the sides with one or sometimes two handholds on the ends generally at the corner, some with ladders
Thus Conrad Alies, a brakeman for thirteen years, was asked : “ Q. How many different kinds of freight cars can you recall ? A. Well some day you might have two or three. Q. Whether they had them on that train during the time this plaintiff was employed—from day to day ? A. Some days have two or three different kinds, other days may be six or seven. . . . . Q. In a month how many different kinds of cars? A. I could not say—-about all kinds. Q. Tell us some of the differences in the construction of these cars ? A. Well, some cars has a side ladder, on one end have nothing, on the other end have a brake shaft; some cars has a platform on. Q. You say on one end is what ? A. A side ladder and nothing on the end ; the other end they will have a side ladder and a brake shaft. Other cars has a step on each end of the car, another has it on opposite corners. Q. When you say on opposite corners how many steps would that mean ? A. Two, one on this corner and another on this corner. Q. Sometimes the other way? A. Yes, sir; sometimes catch them on this corner and the other on this corner. . . . Q. And with reference to the hand-holds ? A. Well, some have hand-holds on the side of the car, another has it right on the corner of the car. Q. How many handholds do some of them have,—that kind that you are speaking of now? A. How many? Well, sometimes catch a car has one crossways, another one up and down right on the outside of the car. Q. Some ears have the perpendicular hand-holds on the oblique corners—how many would that make on a car ? A. Two. Q. Have you seen cars constructed that way ? A. Yes, sir. Q. Tell how he (Dooner) could have made that flying switch ? A. I should think by keeping hold of the cast iron step. Q. How could he have made that flying switch without going to the side of the car ? A. I suppose if he kept —he could have kept hold of the cast iron steps and given a signal. Q. How could he have given the signal ? A. Why give it with his hand or holler. Q. How did the brakemen do it under such circumstances—when they are right next to the
Melvin Farnham, the conductor of the train on which the plaintiff was hurt, and who had been in railroad service since 1869, and was on the train at the time of the accident, was asked: “ Q. In making a fly how does the brakeman signal the engineer, generally? A. In making a fly he generally hollers at him. Q. Whether that could have been done in this case? A. I think it could. Q. About what is the distance from the engineer back to where the brakeman would be standing on the front of the car ready to make a fly? A. Well, about twenty or twenty-five feet, probably. Q. In your judgment how could the brakeman have made that flying switch and signaled the engineer without going to the corner of the car. A. Why, he could have taken hold of those iron steps and reached out beyond the corner of the car. Q. How else could he have signaled besides that? A. He could have signaled him over the top of the tank. Q. And he could have called to him? A. Yes, sir.” Looking at photographs of different kinds of freight cars given in evidence by the defendant he was asked : “ Q. Whether from time to time in the train of which you were conductor, you were handling cars like those represented in the photographs before? A. Yes, sir, we have handled cars like those. Q. Whether you have handled cars of different styles from those shown in any other picture before you. A. Yes, sir.”
Benjamin Ross, a brakeman on the train at the time of the accident and of six or seven years experience, was asked, “ Q. Whether you were handling cars like that shown in the picture from time to time on the train on which you were a brakeman? A. Yes, sir. Q. Look at the model I show you and state whether you handled cars in that train from time to time constructed like that model? A. At that time? Q. Any time before and since? A. Yes, sir. Q. What have you to say about cars constructed like the model, with regard to having
The witness Alies, being recalled, was asked, “ Q. Whether you have seen cars in use on your trains like the model here? A. Yes, sir. Q. Whether you have seen oars similar to that model with a handle on one side only? A. Yes, sir. Q. And whether on cars that have ladders on the side near the corner, j'ou have seen and handled cars without any handles on the end? A. Yes, sir.”
William L. Dampman, yard master for the Lehigh Valley Railroad Company, with an experience of seventeen years, after stating that there was a great difference in cars in respect of the appliances for brakemen, was asked, “ Q. Look at these photographs which have been offered in evidence by defendant’s counsel, and state whether you are handling cars on the railroad like those represented in those pictures? A. Yes, I have handled all those kind of cars. Q. Have you handled cars different still from these shown by the photographs? A. Yes, sir. Q. Whether you have handled cars like this model I show you ?
A. Yes, sir.”
David Beltz, who had been engaged in handling freight trains since 1869 on the Lehigh Valley Railroad, and was a conductor since 1875, was asked, “ Q. Whether on the trains that you
After describing Lehigh Valley and Pennsylvania cars, he was asked: “ Q How about others ? A. Others have a step on opposite corners, crosswise. Q. Two on a ear? A. Yes, sir, only two. Q. How about the handles? A. Only two handles. Others have a ladder on one end and nothing on the other; that is no handles or ladder whatever. . . . Q. Just look at those photographs which defendants put in evidence, and say whether if the trains you have conducted and been brakeman on, you have handled from time to time cars like those represented by these photographs ? A. Yes, sir, those are all familiar, very familiar—all those kinds.”
Charles F. Stetler, a railroad hand for twenty years of which he served for fifteen as conductor of a freight train on the Central Railroad of New Jersey, was asked, “ Q. Whether on your trains from time to time covering the years you have been conductor you have handled ears like those shown by the photographs? A. Yes, handled all of them. Q. Have you handled cars like that represented by the model ? A. Yes, we get those almost daily.”
A. J. Kleeman, a freight conductor on the Central Railroad of New Jersey with thirteen years experience, was asked, “Q. What kind of cars do you handle? A. Handle different kinds of cars, principally freight cars. Q. Whether you have handled many or few styles of freight cars ? A. Handled a great many different styles. Q. Have you any idea how many? A. I could not say exactly how many different styles. Q. During the month ? A. Might be fifty, might be a hundred different styles in a month. Q. Whether you have handled cars like those represented in the photographs which we have offered in evidence ? A. Yes, sir. . . . Q. Well, in the position in which this plaintiff was and under the circumstances he
Theodore T. Turbey, a freight conductor on the Pennsylvania railroad of eight years’ experience, was asked, “ Q. Have you any idea about how many different styles of freight ears you handle in a month? A. In a month—twenty-five to fifty I should say. Q. Look at these pictures here that I show you and state whether on the train on which you were conductor, you from time to time handled cars like those shown in the photographs, and whether you have been doing it during your service on the railroad ? A. I think I have handled all those. Q. Whether you have handled other cars besides those shown in the pictures—cars of various kinds? A. Yes, sir. Q. A brakeman in making a flying switch ordinarily would give what kind of a signal to the engineer? A. Well, with our people we use the word of mouth more than anything else. It can be done more quickly. Q. By using the word of mouth where could the witness have stood and done that on this car ? A. Why in the position he was while pulling the pin.”
H. J. Miller, a railroad hand for nearly six years, was asked, “ Q. What kind of cars do you handle in that train ? A. Handle freight cars and coal cars. Q. How often do you handle freight cars? A. Well, every day. We switch the freight down there. Q. State whether on your train you handle cars like those shown by the photographs of the defendant ? A. Yes, sir, handle cars like those. Q. In making a flying switch how do brakemen usually signal the engineer? A. Well, sometimes they give him a signal with their hand, sometimes they holler to the engineer, ‘ all right, go ahead.’ Q. How does the frequency with which it is done compare the one way with the other—how often do you do it with the word of mouth? A. Why, do it oftener than with the hand.”
James Ward, a railroader of twenty years’ experience, testified that he handled very many different styles of freight cars coming from different roads, and was asked, “ Q. Whether while
From the foregoing review of the testimony given on the trial, it is perfectly apparent that there is no one standard of appliances for the use of brakemeu in common use. On the contrary there are so many different kinds of arrangements for that purpose, all being in common use, that as to any one ol them, there being from fifty to one hundred in number, each kind was as much in common use as any other. Many freight cars have nothing on the end, either ladder, steps or hand-holds In these cases there would be a ladder or steps .on one side with a hand-hold on the opposite side of the car near the corner. In other cases there would be a-ladder on the end either in the middle or at one side, sometimes with a hand-hold near one side, sometimes with none, and in these cases the rungs of the ladder were used as hand-holds. In many instances there would be a hand-hold on one side and another on the other side of the end of the car, and no ladder or steps. In other cases a hand-hold just around the corner on the side of the car, and another either at or near the middle or on the opposite side on the end. In some cases there would be a long hand-hold across the center of the end of the car, and nothing else, and in others there would be one or two perpendicular hand-holds on the end and nothing else. As a rule where ladders were used there were no steps, and where steps were used there were no ladders. Ladders were used without steps, and steps were used without ladders, the one answering the same purpose as the other, and both serving the same use as hand-holds. Where ladders only
So that upon the plaintiff’s own testimony he actually did use the step as a hand-hold, and would have been in no better condition if it had been a hand-hold in name as well as in fact. When it was too late he looked for another hand-hold on the corner and did not find it and lost his balance and fell off. But, very clearly, he should have looked for that additional handhold, before he put himself in such an extremely hazardous position. Not having done so he assumed the risk of his act and must take the consequences himself. He was under no obligation to take the position he did. He incurred no risk or hazard by not doing so, and there was no necessity for the action he did take. He could have signaled the engineer in other and safe modes, and if he had not succeeded in doing so the only consequence would have been that another attempt to. switch would be made. Practically the whole of the testimony was that if he had held on to the step he could have signaled-the engineer and been perfectly safe.
There was in reality no testimony to the effect that cars, with a ladder or with steps, but without hand-holds on the end, were not in use the same as other methods. The plaintiff said he had never seen any, but the other witnesses said they had. Of all the photographs given in evidence by the defendant only two had any hand-holds on the end and they bad neither ladders nor steps. Where there were ladders or steps some were on the side of the car and some were on the end, bu.t close to the
The rule of law in Pennsylvania in regard to the use of a particular appliance where other appliances are also used for the same purpose, as affecting the question of the liability of the employer for injuries occurring to the employee, is perfectly well settled by numerous decisions. If the particular appliance is one of several different kinds of appliances all in common use, the employer is not liable. One of our most recent utterances on this subject, and which we regard as directly appli- ■ cable to this case, is .contained in the opinion delivered by ■ our brother Mitchetjl in Kehler v. Schwenek, 144 Pa. 348. The plaintiff received his injuries while engaged in unhitching ;a dump ear. The evidence showed that there were several methods of hitching in common use. The plaintiff complained that the method in use at the defendant’s colliery was more dangerous than other methods in use and alleged negligence
In Ship Building Works v. Nuttall, 119 Pa. 149, the plaintiff was injured by a stick thrown from a circular saw, and claimed that by using a spreader the injury would have been prevented. The case was allowed to go to the jury on this question and we reversed it for that reason. Our brother Williams said, “ As to the failure to provide a spreader the case of the plaintiff is, if possible, more clearly without merit. The testimony shows that such an attachment is not in general use, and that there is no general agreement among mill owners or
In Titus v. Bradford, etc., R. R. Co., 136 Pa. 618, the negligence complained of was the placing of a broad gauge car upon a narrow-gauge truck, and the use of an unsafe appliance in transporting it. We said, “But even if the practice had been shown to be dangerous that would not show it to be negligent. Some employments are essentially hazardous, as said in Northern Central Ry. Co. v. Husson, 101 Pa. 1, of coupling railway cars; and it by no means follows that an employer is liable, ‘ because a particular accident might have been prevented by some special device or precaution not in common use.’ All the cases agree that the master is not bound to use the newest and best appliances. He performs his duty when he furnishes those of ordinary character and reasonable safety'-, and the former is the test of the latter; for in regard to the style of the implement, or nature of the mode of performance of any work, ‘reasonably safe,’ means safe according to the usages, habits and ordinary risks of the business. Absolute safety is unattainable, and employers áre not insurers. They are liable for the consequences not of danger but of negligence; and the unbending test of negligence in methods, machinery and appliances is the ordinary usage of the business. No ma-u is held by law to a higher degree of skill than the fair average of his professional trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same, and however strongly they may be convinced that there is a better or less dangerous way, no jury can be permitted to say that .the usual and ordinary way, commonly adopted by those in the same business, is a negligent way for which liability shall be imposed.” In Allison Mfg. Co. v. McCormick, 118 Pa. 519, we said, “ The general rule requires of the master that he provide materials and implements for the use of his servant such as are ordinarily used by persons in the same business; but he is not required to secure the best known materials, or to
In Lehigh Coal Co. v. Hayes, 128 Pa. 294, we said, “ The rule in regard to the obligation of the employer respecting the character of the tools and appliances furnished by him has been repeatedly stated in the recent decisions of this court. Thus in Pittsburg &c. R. Co. v. Sentmeyer, 92 Pa. 276, we said that when the employer furnishes his employees, ‘with tools and appliances which though not the best possible, may, by ordinary care be used without danger, he has discharged his duty and is not responsible for accidents.’ ” In Payne v. Reese, 100 Pa. 301, we said, “ An employer is not bound to furnish for his workmen the ‘ safest ’ machinery, nor to provide the ‘ best methods ’ for its operation in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character and such as can with reasonable care be used without danger to the employee it is all that can be required from the employer; this is the limit of his responsibility and the sum total of his duty.’ ” In Reese v. Hershey, 163 Pa. 253, we said, “ The average untrained mind is apt to take the fact of injury as sufficient evidence of negligence. Moreover the use of a dangerous machine is very commonly considered ground for holding the employer responsible, whereas the test of liability is not danger but negligence, and negligence can never be imputed from the employment of methods or machinery in general use in the business.”
In Sykes v. Packer, 99 Pa. 465, Mr. Justice Mekcur, delivering the opinion, said, “An employer does not impliedly guarantee the absolute safety of his employee. In accepting an employment the latter is assumed to have notice of all patent risks incident thereto of which he is informed, or of which it is his duty to inform himself : Whart. on Negl. sec. 206. When, therefore, he undertakes hazardous duties, he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain.”
Without continuing these citations of which there are many more that might be quoted, it is our duty to say that upon all the considerations above indicated we think the plaintiff’s case is without legal merit. It is true he was grievously hurt and
But even if he could do neither of these things and give the signal, he was nevertheless without legal excuse for assuming the very great risk which caused him the loss of his foot. In the Sentmeyer case above cited, the person injured was a flagman who, without necessity for his so doing, got upon the top of a box car and while riding there he was struck and killed by the timbers of a bridge under which the train passed. We held that it mattered not whether the bridge was lower than it should have been, the flagman had no right to expose himself to such a risk. He could have ridden on the engine or in the caboose but he chose to ride on the top of the car, and for that reason there could be no recovery. Gordon, J., in delivering the opinion said, “ When men are hired, something must be predicated of their judgment and prudence, and, hence, when the employer furnishes them with tools and appliances which, though not the best possible, may by ordinary care be used without danger, he has discharged his duty and is not responsible for accidents. But again: the defendant was liable for the consequences of such dangers as it subjected the employee
So too upon the other question, the common usage of this class of appliances. The doctrine is undisputed and it matters not in a given case whether the appliance was the best and the safest. It is enough to know that it was in common use. It was so fully proved on the trial, that appliances of the same character as were upon the car in question, were in common use, that it cannot be said to be a disputed question. That there were upon the end of the car two hand-holds, a brake and a wheel was proved by the plaintiff himself. That there was no uniformity in the position of hand-holds in common use on the ends of cars was the undisputed testimony on both sides. That there were numerous varieties of the appliances in general use, and that in the great majority of them there were not more than two hand-holds, and in many only one and in some none at all was also undisputed. The only contention of the plaintiff as to negligence was that there should have been another hand-hold somewhere on the end of the car, but there was no proof of any general use requiring such an additional hand-hold, and in the absence of such proof the basis of the charge of negligence disappears. Finally it is manifest that the plaintiff’s injury was not due to a want of hand-holds but to his own inexcusable want of care in the use of those that were provided.
It is almost needless to add that the question upon which the case is now decided was not considered or decided at the former hearing in this court. Much more testimony was given at the second trial than at the first, and the question of common use was far more widely developed than on the first trial. The testimony given on the second trial was of such a character as to challenge a critical investigation in order to determine whether it conformed to the standard required by all our decisions, without at all invading the province of the jury.
Judgment reversed.