Appeal, 4 | Pa. | Jan 23, 1928
Argued January 23, 1928. John J. Fox, son of plaintiffs, who sue as his administrators, was employed by defendant as a traveling fireman on its locomotives. He was killed in a collision between the fast passenger train on which he was working and two freight engines and caboose, due to the fact that neither the engineer nor the fireman observed, or, if they observed, obeyed the signals which warned them of the danger ahead. The engineer and fireman were also killed in the collision. Damages were recovered by plaintiffs in the court below and this appeal is by defendant from the judgment entered. *324
Appellant argues that the jury was not properly directed to pass upon the deceased's assumption of the risks of his employment and that the issue of his contributory negligence was not properly submitted. The accident was due to the fact that none of the persons on the locomotive gave heed to the danger signals; if they had the collision would not have occurred. We are convinced that the signals were in working order and properly set, indeed defendant says they were. It follows, therefore, either that the engineer and fireman were not watchful for the signals, as their duty required them to be, or that plaintiffs' decedent was not, if his duty required him to observe them, which is a disputed point in the case. If it was the decedent's duty to observe (and we think it was not shown that it was) and he failed to notice them, he was guilty of contributory negligence; but under the Federal Employers' Liability Act (Act of April 22, 1908, c. 149, 35 Stat. 65) this does not defeat the right of recovery. Quoting from the act, "the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee." Appellants' challenge of the trial judge's instructions on the subject of contributory negligence cannot be sustained. We conclude the jury after hearing them must have understood what was required of it in making up the verdict.
If the negligence was that of the engineer or fireman or of both in failing to observe or heed the signals, then it was that of fellow servants and the defense of the negligence of a fellow servant is not available to defendant under the Federal Employers' Liability Act, the first section of which has the effect of abolishing in this class of cases the common law rule that exempted the employer from responsibility for the negligence of a fellow employee of the plaintiff: Seaboard Air Line Ry. v. Horton,
The only situation in which the doctrine of assumption of risk would possibly have any application here is that Fox actually was aware of the fact that the train was being operated at the rate of fifty-five miles an hour past danger signals and continued in his employment (although it is difficult to see what else he could have done). The court left it to the jury to say whether decedent assumed the risk and this was as much as defendant was entitled to; the burden of proof as to this was on it: Buehler v. Phila. Reading Ry. Co.,
It is true that the trial judge said little, in his charge, regarding assumption of risk but there is, under the proofs, little place for it in the case. Counsel for appellant have confused the doctrine somewhat with contributory negligence, a thing often done: Roberts Federal Liabilities of Carriers, vol. 1, sections 562 and 566. A finding in this case that decedent assumed the risk of the engineer's negligence (see Roberts, id., section 560) would necessarily be based on mere conjecture.
There is no question that it was the duty of the engineer and fireman to note each signal as they reached it and to call it from one to the other; it is argued that this was also the duty of plaintiffs' decedent as traveling fireman. In the printed rules of the company his duties were laid down as being to instruct the regular firemen in the proper method of firing the locomotive and in the careful handling of fuel, and to instruct engineers, in so far as the pumping and handling of engines effect fuel economy. He was required to demonstrate by actually firing the locomotive how to bring about the desired result and was directed to follow up each fireman and to report whether he was improving. Nothing was said in the printed rules about it being a duty of the traveling fireman to observe signals. There was testimony as to verbal instructions being given by their superiors to other traveling firemen in this regard, but no one said any such verbal rules or commands were given to Fox, hence there was no proof of such *327 duty imposed upon him and the argument of his violation of it is extraneous.
We have considered all the assignments of error; none would justify a reversal.
The judgment is affirmed.