254 Pa. 235 | Pa. | 1916
Opinion by
This is an action brought under the Federal Employers’ Liability Act to recover damages for personal injuries sustained by the plaintiff while he was in the employ of the defendant railroad company. The negligence averred was the opening of, the cylinder cocks of a locomotive by the engineer, and thereby permitting the escape of steam in such a manner as to strike the plaintiff and cause him to step so near the opposite railroad track as to be struck by a passing switch engine. We are of opinion that there was sufficient evidence to warrant its submission to the jury on the questions raised by the pleadings, and that the learned court below erred in granting the nonsuit.
The defendant company has three tracks at its Mead-ville station. There are board platforms between the tracks extending north of the station about two hundred feet to Center avenue, and south of the station about three hundred feet to Mead avenue, which are used by employees operating the trains and by passengers boarding and alighting from through trains between New York and Chicago. The width of the platforms is about eight feet, and when two of the adjacent tracks are occiipied by trains, there is an open space between them of about four or five feet.
The plaintiff was a switchman, and had changed the engines on train No. 10, and was going to the south end of the station to perform a like service on the arrival of train No. 9 which was about due to arrive when the accident occurred. He was walking south toward the station, between the east-bound and west-bound tracks, when he came to the locomotive of train No. 10 which was standing on .the east-bound track midway between the station and the north end of the platform. The train was receiving passengers and taking on express matter. When he arrived at a point on the platform opposite the pilot, of the locomotive, the train started, and as the cylinder of the engine passed the plaintiff, the engineer
The defendant has a rule regulating the conduct of enginemen at station platforms, which was put in evidence and reads as follows: “Enginemen are required to exercise care to prevent water from being thrown from smokestacks when starting, and are forbidden from opening cylinder cocks, and to prevent overflow of injectors at station platforms. They are required to have the firing done in such a manner as to avoid dense smoke, and to use the blower gently to prevent smoke trailing when at stations. It is required that the steam pressure be regulated to avoid the escape of steam from safety valves.” This rule is incorporated in a book of “rules of the operating department of the Erie Railroad Company,” which contains the general notice: “Obedience to the rules is essential to the safety of passengers and employees, and to the protection of property. To enter or remain in the service is an assurance of willingness to obey the rules.”
The learned judge held as a matter of law that the discharge of the steam by opening the cylinder cocks at the time and in the manner complained of was not negligence. This conclusion was evidently based on his assumption of facts which do not appear in the case and on his view of a part of the plaintiff’s testimony, elicited on cross-examination and which bears more directly on plaintiff’s contributory negligence, and not on the whole testimony. So far, however, as his testimony was contradictory, it was for the jury to reconcile the conflicting statements and say which should prevail: Cronmuller v. Evening Telegraph, 232 Pa. 14.
As the case goes back for a retrial, we will not make further reference to the testimony, nor discuss the question of assumption of risk. The evidence on the next trial may require the consideration of that question, and
The judgment is reversed with a procedendo.