241 Pa. 565 | Pa. | 1913
Opinion by
In this action the plaintiff who was employed as a repairman by the defendant company, sought to recover damages for injuries resulting from the alleged negligence of the defendant. The latter owns and operates a coal mine in Mt. Carmel Township, Northumberland County. The mouth of the mine is some four and a half miles from the breaker with which it is connected by a single track railroad with two turnouts. It appears from the evidence that for some years prior to October 16, 1907, defendant had provided empty cars to convey its miners and workmen from the breaker to the mine in the morning, and to bring them back at night. The duty of hauling these cars was assigned to the engineers of engines Nos. 3 and 11, which at all times had the right of way over the railroad, and no other engine had the right to use that track unless by special orders from the outside foreman. In spite of notice and orders to the contrary, the miners in going down frequently rode upon loaded coal cars. This practice was dangerous and contrary to the provisions of the mining law, and in an effort to prevent it the defendant posted a sign in large white letters on a black ground, in a conspicuous place on the front of the fan house facing the mouth of the slope, warning the men not to ride on loaded cars. The sign was in place at the time of the accident, and had been so for a long time. Notwithstanding the notice and remonstrances on the part of the foreman, some of the men persisted in boarding and riding upon the loaded coal cars. On the day of the accident, October 16, 1907, an engineer named Shaeffer in charge of engine No. 2, had been ordered by the outside foreman Charles Singley to haul timber on a small railroad near the breaker, known as the timber track. This was his usual place of work, and he had no right to take his engine elsewhere without special orders from the outside foreman. But upon the day in question, as is stated in the history of the case, without orders and
In the cases of O’Donnell v. A. V. R. R. Co., 59 Pa. 239; McNulty v. P. R. R. Co., 182 Pa. 479, and Goehring v. Traction Co., 222 Pa. 600, it was held that where the employee was transported to and from his place of work, as part of the compensation for his services, he was to be regarded as a passenger and entitled to the benefit of the presumptions which arise in such a case. But the distinction between those cases and the one now under consideration is that here it did not appear that there was any contract to transport plaintiff as part of the compensation for his services. The furnishing of transportation to the workmen was, in so far as the evidence disclosed, gratuitous on the part of the defendant company. The plaintiff is therefore to be regarded merely as an employee with the privilege as part of his business, of riding to and from his work in the empty cars provided for that purpose. He therefore is within the rule that mere proof of the fact of the accident is not sufficient to warrant a recovery. Some specific negligence on the part of the employer must be shown. In. Higgins v. Fanning, 195 Pa. 599, the rule is thus stated, as appears in the syllabus: “As between employer and employee the mere happening of an accident from which negligence could be inferred raises no presumption of negligence against the employer. A specific act of negligence must be shown.” In Spees v. Boggs, 198 Pa. 112, the present Chief Justice said (p. 116): “Except in the case of a carrier, the rule is uniform that where recovery is sought on the ground of negligence of the defendant, the burden of proof is on the plaintiff, and in an action
In the present case the negligence alleged was in permitting the two trains to be run under conflicting orders, towards each other upon a single track. But the evidence clearly shows that the presence of the two trains upon the same track was due to the unauthorized message sent by the engineer of engine No. 11 to the engineer of engine No. 2, asking him to bring down the men. No one but the outside foreman had authority to give any such order, and he had not only not given it, but was not aware that it had been given by anyone else. Whatever negligence there was in the giving of this order was therefore not that of the foreman or of any superior officers of the defendant.
As a matter of fact the engineer of No. 2 did not attempt to take the men down in the empty cars. He took only loaded coal cars on which the men had no right to ride. It is therefore apparent that even if the telephone message had been authorized, the engineer did not obey it in the proper manner, if he had taken the empty cars instead of the loaded ones, and if the miners had boarded these empty cars, in so far as the evidence shows, the accident would not have happened. But aside from this, we see no escape from the conclusion that the misfortune suffered by the plaintiff was due to his own cárelessness. “In most cases the question of contributory negligence is one of fact for the jury, though by no means always. Where the facts are clearly established, and the inference of negligence from them manifest, the court should peremptorily so instruct the jury:” Coolbroth v. P. R. R. Co., 209 Pa. 433 (439). From the undisputed testimony it appears that the plaintiff climbed upon a loaded coal car, and placed himself in a dangerous position at the front end of the car with his legs over the edge. He was neither ordered nor invited to ride on this car. He was there in violation of the law of the State and the rule of the
The assignments of error are sustained, and the judgment is reversed.