256 Pa. 397 | Pa. | 1917
Opinion by
Plaintiff’s husband, John Falyk, was killed while in the employ of defendant railroad company on July 4, 1915. He was and for over four years had been in such employ as a car cleaner in defendant’s yard, which extends between Thirty-first and Thirty-third streets, Pittsburgh, where its passenger cars are transferred between the east and the west, in interstate commerce.
It is the custom for gangs of men to clean the cars while standing there awaiting transfer. Among the tracks in the yard is No. 31, where a west bound baggage car was placed on that day, and to which the gang foreman called Mr. Falyk’s attention.
At the same time there was an east bound combination car for passengers and baggage standing on the same
No one saw the accident and just how he came to be between the buffers or diaphragms does not appear. It was not necessary for him to occupy such a position in cleaning the ends of the cars, unless engaged in cleaning the vestibule doors; and whether it was a part of his duty so to do was a disputed question in the case. While at work on the end of the baggage car he was facing west and not where he could see the approaching cars or where he could be seen by the brakeman.
There was at that time no system of signals in use in the yard by which the deceased could give notice or warning that he was working upon and about the car, or by which he could be notified of the movement of the
The trial judge properly instructed the jury, as provided in said act, that contributory negligence if found would reduce the damages but not wholly defeat the action; and also submitted to the jury the question of defendant’s negligence and that of the assumption of risk by the deceased. The verdict was for the plaintiff, on which judgment was entered.
Of course it was the duty of the defendant to provide the deceased a reasonably safe place to work and with reasonably safe tools and appliances. The general rule seems to be that: “It is true the’master is not responsible for accidents, occurring to his servant, from ordinary risks and dangers which are incident to the business in which he is engaged; for, in such case, the contract is presumed to be made with reference to such risks. But, on the other hand, where the master voluntarily subjects his servant to dangers, such as, in good faith, he ought to provide against, he is liable for any accident arising therefrom......The servant does not stand on the same footing with the master. His primary duty is obedience, and if, when in the discharge of that duty, he is damaged, through the neglect of the master, it is but meet that he should be recompensed......The employer is bound to furnish and maintain suitable instrumentalities for the
Whether those engaged in ordinary outside car cleaning were so exposed that due care for their protection required a system of signals or warnings to those having charge of the movement of cars on the same tracks, was a question of fact. It seems to be a correct statement of the law that: “Where coemployees are distant from each other and it is dangerous for one to have another continue at his work, he who is subject to the peril not being-in a position to ascertain the true conditions, it is the duty of the employer to frame and promulgate such rules and regulations as will afford safety to employees”: O’Rourke v. Alphons Custodis Chimney Construction Co., 21 Pa. Superior Ct. 52.
Whether the situation here was such as to make that rule applicable depended upon the circumstances.
The case therefore so far as referred to the alleged negligence of the defendant was for the jury.
In a clear case the question of assumption of a risk by the employee is one of law for the court, but where there is doubt as to the facts or as to the inferences to be drawn from them it becomes a question for the jury. To preclude a recovery on that ground it must appear that the employee knew and appreciated or should have known and appreciated the danger to which he was exposed; and in case of doubt that is for the jury.
See Madden v. Lehigh Valley R. R. Co., 236 Pa. 104; Valjago v. Carnegie Steel Co., 226 Pa. 514; Cole v. Wehn & Bawdon, 3 W. N. C. 409.
Except in case of obvious and immediate danger the servant in general may rely on the master’s judgment: Williams v. Clark, 204 Pa. 416. Here the master by general order dispensed with the flag and light as a protection to car cleaners, in effect because not deemed neces
This case also differs from that of Brossman v. Lehigh Valley R. R. Co., 113 Pa. 490, because there the servant was injured by an obvious danger, to wit, a low bridge with which he was familiar. In Simmons v. Southern Traction Co., 207 Pa. 589, so far as appears the servant did not, as in this case, have the master’s assurance that signals were unnecessary.
The discontinuance of a precautionary measure amounts to an assertion of the master’s judgment that it is unnecessary, while the failure to originally establish such precaution may have resulted from oversight.
The servant assumes the ordinary risks of the business and all such obvious dangers from whatever cause arising as threaten immediate injury, but where the defect is minor and risk apparently not great, and the servant continues his work relying upon the master’s assurance as to its safety, he does not thereby as matter of law assume the risk of injury from such defect. Where the question as to the safety of appliances is in doubt, the servant is not bound to set up his judgment against that of the master: Reese v. Clark, 198 Pa. 312.
In the case at bar, the extent of the risk depended largely upon whether or not it was necessary for the deceased to stand between the buffers in the performance of his duty, and as to that the evidence was conflicting.
The burden of proof as to the assumption of risk is upon the defendant and where there is any doubt as to the facts, or inferences to be drawn from them, the ques
The deceased may have gotten between the buffers accidentally by a slip or a fall; and it is not clear that he knew the car behind him belonged to an east bound train or was liable to be disturbed.
We are not convinced that the court below erred in declining to pass upon the question of assumption of risk as one of law.
The assignments of error are overruled and the judgment is affirmed.