150 Pa. 598 | Pa. | 1892
Opinion by
The plaintiff, while in the strict performance of his duty, was grievously injured without any fault of his own, and the cause of his injury was a defect in one of defendant’s cars. This defect was unknown to him and he had no sufficient opportunity to discover it prior to the accident. If the principles of law applicable to the facts of the case will permit a recovery, the plaintiff is undoubtedly entitled to recover compensation for his injury. The very able counsel for the appellant with much frankness concedes that inasmuch as the plaintiff -was an employee of the defendant, the mere fact of his injurjr raises no presumption of negligence on the part of the defendant, and further that the plaintiff must prove affirmatively the negligence of the defendant, and that, in the absence of such proof, it is the duty of the court to take the case from the jury and direct a verdict for the defendant. The contention of the learned counsel is that where there is any proof of negligence, more than a scintilla, the question becomes a question of fact for the jury, and that, in the present case, the proof being that the car numbered 9820 was in an unsafe and dangerous condition which caused the plaintiff’s injury, a prima facie case of negligence was made out which required the trial court to submit the question to the jury.
It is not to be doubted that the plaintiff’s injury was caused by a projecting iron rod, which extended several inches beyond its proper position at the end of the car, and it must be conceded that the plaintiff had no knowledge of its presence and no opportunity to discover it. He was a brakeman and it was his duty to couple the car in question to another car, and it was dark when he undertook to perform this duty. There is
If the defendant had previous knowledge of the condition of the car, or ought to have had such knowledge, and failed to repair the defect within a reasonable time, it would be guilty of negligence and the plaintiff would be entitled to recover. It is not claimed by the appellant that there is any evidence in the case showing that the defendant had actual knowledge of the defect at any time prior to the accident, but the contention is that under all the evidence the defendant ought to have had such knowledge and is therefore liable. This contention renders it necessary to examine the evidence with care in order to determine whether it is such as to warrant an inference of prior knowledge by the jury. If there was such evidence the case should have been given to the jury; if there was not, the court below was right in withdrawing it from the jury.
The accident occurred on the evening of the 5th of December, 1887. Milton Wolf, a witness examined by the plaintiff, testified that he was a brakeman on the defendant’s road and that, about a week before the accident, the car in question, No. 9820, was brought by himself and others from Sunbury to Pleasant Gap, loaded with hard coal, and that the car so loaded was put on the siding at Pleasant Gap. He further said that he did not know when it was taken out of the Pleasant Gap siding, and that the next time he saw it was when it was taken out of Logan siding loaded with ore. This was on the day of the accident and he assisted as brakeman and was on the train when Mensch was injured. He did not examine the car until the next morning and then he discovered the projecting bolt with such marks on it as indicated that it had inflicted the injury. This appears to be the whole of his knowledge respecting the bolt.
L. A. Troxell, a witness for the plaintiff, testified that he was conductor of the defendant’s freight train running between Sunbury and Bellefonte, and that, on the evening of December 5, 1887, they stopped at Logan station to take on three cars of which this, No. 9820, was one; that while they were engaged in taking on the cars the accident occurred, though he did not see it, but did see Mensch immediately after it hap
Z. Underwood, examined by plaintiff, testified that he was rear brakeman on the freight train and assisted in taking on three ore cars at Logan ore siding on the night in question. He heard the plaintiff call out and saw his light go over the bank and went to him and found him with the injury indicted. Pie described all that he saw of the occurrence and the removal of the plaintiff to the doctor’s office. He saw the bolt or rod that evening and described it fully, substantially the same as the other witnesses. He also said that he had seen the car that morning when they brought it out from Pleasant Gap. He was asked: “ Q. When you passed it did you see this rod that morning? A. No, sir, I didn’t. Q. Were you on the train that brought this car up.from Sunbury? A. Yes, sir; I was on from where we passed local; I had traded off that time and I saw the car put in at Pleasant Gap. Q. State if you noticed this rod at that time ? A. No, sir, I didn’t.” He testified at considerable length as to the movement of the cars and the occurrence of the accident but gave no further testimony as to any previous knowledge of the condition of the bolt.
The plaintiff testified that he was a brakeman on the train, that it was his duty to couple the rear cars and that while he was doing so he was struck and injured. He also said he saw nothing of the projecting bolt.
J. T. Cherry, examined for plaintiff, testified that he was freight engineer and was acting as such on the train when the accident occurred. On the next morning he examined the car to see what had caused the injury and discovered the project
Saintclair, the flagman, was also examined by the plaintiff but he did not see the occurrence of the accident. He said he examined the car the next morning and found the projecting bolt, but he gave no testimony as to any previous knowledge of its condition.
These were all the persons who were working the train and none of them testifies to the slightest knowledge of the projecting bolt at any moment prior to the accident. They are the persons who naturally would first discover such a defect of the ear. It was conspicuous and was found at once after the accident. The testimony of the men was that the bolt projected because the nut which held the opposite end of the bolt had worked off or been knocked off, and thus the end of the bolt had worked its way through the sill until in dropped down on the other side, and this caused the front end of the bolt to project. When this occurred or how it occurred was not shown by any testimony, but that it might easily’occur from the ordinary working of the car can be readily understood. There is no evidence as to any usage of the car after it left the yard at Sunbury except that which would occur by its removal. It had remained at Pleasant Gap apparently until it was taken out on December 5th, and during that time there was ample opportunity to discover such a manifest defect if it really existed then. Had there been any proof in the case as to its existence during any portion of that time an inference of negligence would have arisen against the defendant which, if not explained by testimony, would have been sufficient to take the case to the jury. But there is no such testimony in the case. There was abundant proof that a very thorough and perfect system of inspection of all cars, coming into defendant’s yard at Sunbury, was provided, and it can scarcely be imagined that if this defect had existed while the car was in that yard, it could have escaped discovery. In the absence of any proof that it did exist either before or at the time the car was in the Sunbury yard, we do not see how the jury could be permitted to find that it did then exist, and then draw an inference of negligence because the accident subsequently occurred. It
In Baker v. Allegheny Valley R. R. Co., 95 Pa. 211, we said, Sharswood, C. J.: “A servant assumes all the ordinary risks of his employment. Pie cannot hold the master responsible for an injury which cannot be traced directly to his negligence. If it has resulted from the negligence of a fellow-servant in the same employment he must look to him and not to the master for redress. The master does not warrant him against such negligence. The duty which the master owes to his servants
In Payne v. Reese, 100 Pa. on page 306, Gordon, J., said: “ An employer is not bound to furnish for his workmen the safest machinery, nor to provide the best methods for its operation in order to save himself from responsibility for accidents resulting from its use. If the machinery be of an ordinary character and such as can with reasonable care be used without danger to the employee, it is all that can be required from the employer. This is the limit of his responsibility and the sum total of his duty.”
It is to be said in passing that there was not a particle of proof in the present case that there was any defect in the substance or size of the rod, or in its adjustment, that caused the injury. So far as the evidence goes it was of the ordinary material used for such purposes, and was properly made, and placed and held in position in the customary manner in use for such implements. The difficulty was one which resulted from its ordinary use. The defect was not known to the workmen who were employed about the car, nor is there the least evidence to show that it was known to the defendant or to any of its officers. A thorough and adequate system of constant inspection was maintained by the defendant, and there is no proof that the defect was known to any of the persons engaged in that service.
In P. & R. R. Co. v. Hughes, 119 Pa. 301, we held that in an action by a railroad employee against the company for damages for personal injuries while in the performance of his duty,
In the foregoing case the plaintiff who was a brakeman, while in the performance of his duty and without any fault of his, stepped upon the lever of a brake in the usual way, in order to apply it to the wheels, when the lever gave way and the plaintiff was thrown to the ground. It was contended for the plaintiff that the lever gave way because of the breaking of a supporting pin or from displacement of the key, and it was also alleged that there was negligence arising from an insufficient system of inspection. The case was left to the jury by the court below and they found a verdict for the plaintiff. • This court reversed the judgment without a venire on the ground that there was not sufficient evidence of negligence to sustain the verdict. Our lamented Brother Clabk, reviewing the facts, said in the opinion: “ Did' the pin break at all ? If it did was it the result of accident or negligence ?' If the pin did not break, says the plaintiff, it fell out from the displacement of the key. Is there any evidence that the key had fallen out
We are satisfied with this reasoning and see no occasion to depart from it. Other cases to the same effect are the following :
In Pittson Coal Co. v. McNulty, 120 Pa. 414, we said: “ The action is by an employee against his employer; the gist of the action is negligence, and the burden of proof rests upon the plaintiff to prove that the negligence of the defendant was the proximate cause.”
InMansfield Coal, etc., Co. v. McEnery, 91 Pa. 191, which was an action charging negligence in employing a servant, the present Chief Justice said: “ It is not enough for the plaintiff to show that his work was unskillfully done or that he was incompetent. It must appear that the defendants were guilty of negligence in selecting him, that they either knew he was incompetent or with proper diligence might and ought to have known it.”
In Erie & Wyoming Valley R. R. Co. v. Smith, 125 Pa. 259, we said: “ Had the fireman (who was the person injured) been a passenger he would have had the benefit of a presumption of negligence which it would have been the duty of the company to rebut. But with an employee there is no such presumption and he must prove affirmatively the fact of negligence and that it is such a kind of negligence as violates the special and limited duty of an employer to an employee.”
Applying the decision in R. R. v. Hughes, supra, to the
It is earnestly contended by the learned counsel for the plaintiff, that the rule which requires a higher grade of proof from an employee than from a passenger, or a stranger, is too harsh and severe, and while we are not asked to reverse that rule, we are urged to hold that the present case is exceptional in its facts and is not brought within its terms. A most thorough consideration of all the testimony fails to convince us of the correctness of the plaintiff’s contention. It seems to us the case does come strictly within the rule, and the reasons of policy and of abstract justice which underlie the rule, are of
Judgment affirmed.