Peplinski v. Pennsylvania Railroad, Appeal, No. 71

Appeal, No. 71 | Pa. | May 19, 1902

Opinion by

Mr. Justice Dean,

The plaintiff, Peplinski, was an employee of W. L. Scott & Company large coal dealers at Erie, Pennsylvania. On June 19, 1901, he was on top of a car of coal then standing on the railroad trestle about to be unloaded, when it was struck or bumped by other cars of defendant, .pushed or shunted by its locomotive; the effect was to tumble plaintiff off the car into the coal chute below and very seriously injure him. He brought suit against the defendant for damages, averring negligence in pushing the cars without warning against the one he was on and thereby causing his injury. The defendant denied the alleged negligence, and further averred, that under the act of April 4, 1868, plaintiff was a fellow-servant and coemployee of the trainmen who shunted the cars negligently, and therefore, could not recover. The court submitted the question of negligence to the jury, but declined to bold, that under the evidence, the plaintiff was a fellow-servant of the trainmen. The jury found for the plaintiff, and, therefore, necessarily, that the defendant was negligent. Although the evidence of negligence was very meager, still, it rose above a scintilla and was properly submitted to the jury. The remaining assignments of error, in substance, raise the single question, whether on the undisputed facts the case comes within the act of 1868. It enacts:

“ That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee : Provided, That this section shall not apply to passengers.”

The railroad company laid the ties and rails on a trestle constructed by Scott & Company on the land of the Philadelphia and Erie Railroad, lessor of the defendant, for the purpose of moving W. L. Scott & Company’s coal to the Lake Shore Railroad Company. The trestle was for the use of the coal company, and was built to promote its business, as well as that of the railroad company; the railroad company maintains the structure at its own cost; owns and operates the locomotives and cars that -run upon it. The trestle is not level, but is an up grade to the summit, to which they are pushed by a locomotive, four cars at a time; theredhey are detached and under the control of a brakeman are dropped, by gravity, to pockets or coal chutes which discharge their coal into cars on the Lake Shore Railroad under the trestle. The cars to be moved to and put on the trestle are selected by Scott & Company, and by them marked; the railroad company then moves them to the chutes designated by Scott & Company where the employees of the latter company, either by hopper bottoms or by hand unloaded them ; on the day of the accident, four loaded cars had been placed at the chutes; Peplinski, as was his duty, had got on top of one of these coal cars preparatory to unloading it; four other cars were then pushed over the summit of the knuckle; these last stopped ten feet short of their place; the engineer attempted to move thein to their proper place ; when he did so, they bumped heavily against the four already placed, knocking Peplinski over into the coal chute, as already noticed. Clearly, Peplinski at the time of his injury was employed in and about the premises, and the car of the railroad company, although employed by another than the railroad company. If he was injured by the negligence of the servants of the railroad company, as the jury has found, then on the undisputed facts, he was injured by his fellow-servants under the act of 1868, and cannot recover. It is a waste of time, to again cite the authorities from Cummings v. Pittsburg, etc., Ry. Co., 92 Pa. 82" court="Pa." date_filed="1879-11-17" href="https://app.midpage.ai/document/cummings-v-pittsburgh-cincinnati--st-louis-railway-co-6236328?utm_source=webapp" opinion_id="6236328">92 Pa. 82, down to Weaver v. Railroad Company, 202 Pa. 620" court="Pa." date_filed="1902-05-19" href="https://app.midpage.ai/document/weaver-v-philadelphia--reading-railway-co-6246737?utm_source=webapp" opinion_id="6246737">202 Pa. 620. We are not here to review criticisms on the wisdom or policy of the statute, but to enforce it according to its plain meaning. The judgment of the court below is reversed.