279 Pa. 188 | Pa. | 1924
Opinion by
Plaintiff recovered a verdict in an action charging defendant with negligence, which resulted in the death of her husband; in due course the court below entered judgment for defendant non obstante veredicto, and this is the basis of plaintiff’s appeal. After all doubts are resolved in her favor, the essential facts are found to be as follows:
Decedent was an employee of the Pennsylvania Railroad Company. At and near the place of the accident, defendant’s electric light poles, to which were attached wires carrying a dangerous current of electricity, were on the right-of-way of the railroad company, parallel to its tracks, being so placed for the purpose of supplying it with electricity. For some time prior to the accident, the railroad company had been proceeding in a desultory way to elevate the tracks, but ultimately it placed a large force of men on the work. Defendant was not notified of this. A few days later, one of the railroad employees, while unloading a car, received a shock, when
On the day it occurred, decedent was sent, by those in charge of the work for the railroad company, to help unload a car which was on the track nearest the poles and wires. His work had to be done on top of the car, close «to the wires, the proximity of which he must have known, because he helped move the track, and the fact that the wires were only breast high must have been apparent to him in the broad daylight. From some unstated cause, but probably owing to the unstable character of the cinders upon which he stood while unloading the car, his body swayed, his hands came in contact with the wires, which had not been raised, and he was instantly killed.
Giving the utmost possible effect to the notice of the first accident, it cannot be said defendant was bound to anticipate that a further elevation and also a removal of the tracks, was contemplated. Hence plaintiff was required to prove this by other evidence (which she failed to do) or to show defendant had express or implied notice that the change was about to be or had been made.
“In determining the liability of an electric company for a personal injury alleged to have been caused by its negligence, as in other actions for negligent injuries, the generally accepted test is that negligence is not the proximate cause of an accident unless, under all the circumstances, the accident might have been reasonably foreseen by a person of ordinary intelligence and prudence......In the erection and maintenance of their poles, wires and other appliances, they are bound to anticipate only such combinations of circumstances, and accidents and injuries therefrom, as they may reasonably forecast as likely to happen”: 9 R. C. L. 1198. In the present instance there is no evidence from which a jury could properly have concluded that defendant was “bound to anticipate” that the railroad company would both move and elevate its tracks, so as to cause those
The fact of the previous accident does not help appellant. Defendant was not told that the instrument which came in contact with the wires was a shovel being used in unloading a car. The advices given to it were that it was a “long iron pole,” which established the contact, but, so far as the evidence discloses, it was not told how this occurred.
The promise, made by defendant to the railroad company, that the wires would be raised, was not made to decedent, nor, so far as appears, had he any knowledge of it. If he did know, then he must have been acquainted with the fact that their elevation was desired because they were dangerous in their then present condition; and, in that event, having chosen to take the risk, there could be no recovery; Myers v. Edison Electric Illuminating Co., 225 Pa. 387. If he did not know, then the promise was, as to him, an irrelevant fact, for he could not have relied on it.
The judgment of the court below is affirmed.