Appeal, No. 97 | Pa. | Apr 22, 1895
The only error assigned in this case is the refusal of the court to take off the judgment of nonsuit.
A careful examination of the testimony fails to disclose any fact or circumstance that would have warranted the jury in finding that the unfortunate accident which befell the plaintiff was attributable in any degree to negligence of the defendant company. It does not appear that it knew, or, in the exercise of reasonable care, should have discovered the insecurity of the “ timber, apparently solid and fixed but in reality insecure,” upon which plaintiff stepped and was thrown “ to the ground beneath, a distance of twenty or twenty-five feet.” In brief, there is not a scintilla of evidence tending to show that plaintiff’s serious injury was the result of any negligence of the defendant company or its agents. On the contrary, it is quite clear that it was due solely to risk incident to the work in which plaintiff and his colaborers were engaged, viz: in dismantling. the company’s elevated structures or trestlework at Seventeenth and Filbert streets, preparatory to the extension of its depot. This work involved the taking up of the flooring on the trestles, the removal of the plates by which the rails were secured, and the taking up of the rails themselves. In thus demolishing the structure and removing the material, it was necessary for the men engaged therein to pass to and fro over the partially dismantled structure. The risk of such an employment must have been obvious to any one. It was an ordinary and apparent risk necessarily incident to the employment.
There was therefore no error in refusing to take off the judgment of nonsuit.
Judgment affirmed.