53 Pa. Super. 638 | Pa. Super. Ct. | 1913
Opinion by
On the day before the occurrence which resulted in his injury, the plaintiff took employment with the Hygeia Ice Company as an assistant fireman for the boilers used in the operation of the company’s plant. These boilers were located below the surface of the street on which the company’s building fronted. The ashes caused by the operation of the boilers were first gathered in a pit which
There was much conflict in the testimony as to the exact manner in which the accident happened and the defendant contended in the first place that the evidence disclosed no act of negligence on the part of its servants and that a binding direction in its favor should have been given to the jury. It is urged upon us that even in the testimony of the plaintiff himself are to be found some contradictions, but it is argued with just as much force that the witnesses of the defendant are not in entire harmony with each other on certain material questions of fact. However this may be, it is clear to us that there was evidence produced by the plaintiff which would warrant the jury in finding all of the facts that we have stated. Were those facts found favorably to the plaintiff, the learned trial court could not have properly declared, ás a matter of law, that the defendant’s servants had been guilty of no act of negligence. The plaintiff had been placed in a position of imminent peril by the negligent approach of the locomotive without timely warning. In the effort to avoid that peril he had found a place of apparent safety. It being shown that the defendant’s servants had knowledge that the next movement of the
It is next argued that even if the defendant’s servants were guilty of negligence, yet the plaintiff cannot recover because they were his fellow servants under the operation of the Act of April 4, 1868, P. L. 58 (then in force but shortly thereafter repealed), and their negligence would consequently furnish no basis for a recovery by him against the defendant.
Without attempting to review the many cases in which the statute referred to has been construed by the courts, we content ourselves with a single excerpt from the opinion of Mr. Justice Mitchell in Spisak v. R. R., 152 Pa. 281, cited as a leading case by counsel on both sides. After quoting the language of the statute, the learned justice points out in the following language the two classes into which the cases may be properly grouped: “Upon the distinction thus expressed the cases divide themselves into two classes. In the first the place of the accident is clearly and for general purposes the 'roads, works, depots or premises'’ of the railroad company. In such cases it is sufficient if the person injured is lawfully 'engaged or employed on or about’ them, and is not a passenger. . . . The other class is where the accident occurs in a place which is not exclusively and for general purposes, but only within a limited and statutory sense, the premises of the railroad company. In this class the nature of the employment at which the party injured was engaged at the time, becomes material. If it is business connected with the railroad in the sense that it is ordinarily the duty of railroad employees, then while the party is engaged at it the statute treats him as a quasi employee, and puts
The defendant offered in evidence a paper signed by the plaintiff in which it is stated that the latter was injured while in the service of the ice company under circumstances which he claimed rendered his employer liable in damages; that the employer denied such liability and that the parties being desirous to compromise, the employer had given and the plaintiff had received $75.00, in consideration of which he released his employer from all liability by reason of said injury, etc. Thereupon the learned court below was asked to instruct the jury that the plaintiff could not recover on the theory that, taking the case in the aspect most favorable to him, his injury had been caused by the joint act of two tort feasors, and his acceptance of satisfaction from the one constituted a bar to any recovery by the other. The legal proposition here involved has been argued out by counsel on both sides in exceptionally able briefs exhausting all the learning on the subject, both in our own and foreign jurisdictions. We have given attentive consideration to the arguments of counsel and examined with care the cases cited.
Where two or more tort feasors unite in doing an act which works a single injury to another, the party injured may sue in one action all of the wrongdoers, or he may
To the class first mentioned undoubtedly belongs Seither v. Traction Co., 125 Pa. 397. In that case the plaintiff, riding in a street car of the People’s Passenger Railway Company, was injured in a right-angled collision between that car and one of the Philadelphia Traction Company. He brought an action against the first named company in which he alleged that his injury resulted from the negligent operation of its car and he prosecuted that action to trial and verdict for a large sum of money. The trial court set aside that verdict and awarded a new trial. While it was pending a settlement was reached by the parties, as a result of which the plaintiff received from the
In Thomas v. Central Railroad Co. of New Jersey, 194 Pa. 511, it appeared that the representative of the plaintiff was an engineer of the Philadelphia & Reading Railroad Company; that while hauling an express train of that company over the tracks of the Central Company he was killed in a collision which had been caused by the breakup of a freight train preceding him and the consequent obstruction of the track on which he was hauling his train. It was alleged that the obstruction, which thus caused his death, was brought about by the negligent act of the defendant company, and the action was begun against the latter company to recover damages. By way of defense that company undertook to offer in evidence the fact that the deceased was a member of the relief association of the Philadelphia & Reading Railroad Company; that his widow, the plaintiff, had received from that company a sum of money and in consideration thereof had executed and delivered to that company a release of any liability for damages by reason of the death of her husband. It was argued that the company last named had at least contributed to the injury by reason of the manner in which it had prepared and sent out the long train of freight cars that had broken up and thus caused the collision. The learned trial court rejected the offered evidence and the plaintiff was permitted to recover. On appeal to the Supreme Court the rejection of the offered release was assigned for error, and in passing on that assignment Mr. Justice Mitchell said: “It is further argued that the negligence of the Reading Railroad
In Peterson v. Wiggins, 230 Pa. 631, the rule is thus stated by Mr. Justice Stewart: “Casesmay arise where, whether the party sued separately was a joint trespasser becomes a question to be decided only by a jury; there are others, however, where the question is for the court. If the settlement and release relied on follow a suit at law, either before or after final adjudication, it would be for the court to decide from an inspection of the record whether the cause of action was the same in both cases, and determine whether defendant was sued as a joint trespasser or otherwise, unless there were independent facts in dispute bearing on the question.”
In the case at bar the testimony, without dispute in these respects, shows that the plaintiff never brought any action at law against the ice company, nor did he ever threaten to bring such action to secure money from that company. The testimony fails to disclose any act of negligence whatever on the part of the ice company. There was nothing intrinsically dangerous, either in the character of the work which the plaintiff was to perform for his employer nor in the place where that work was to be done. In no proper sense could it be said that his injury was connected with any breach of duty by his employer in either of the respects mentioned. So far as the evidence before the lower court exhibited the situation, the plaintiff’s injury was solely due to the negligent intervening act of the defendant company and its servants, over whose action the ice company had no control, and whose negligence it could not foresee and was not bound to anticipate. The evidence in the case further
Under the facts exhibited by this record we cannot see how the learned trial court could have declared, as matter of law, that the plaintiff was barred from a recovery in the present case by reason of his signature of the receipt or release to the ice company, already referred to, and therefore the defendant’s request for a binding direction to the jury in its favor on this account was properly refused. After a careful review of all of the questions involved we are all of the opinion that the case was well tried and that the record discloses no reversible error. The assignments of error are therefore overruled.
Judgment affirmed.