Peters v. Schroeder
138 A. 755
Pa.
1927
Check Treatment

Opinion by

Mr. Justice Frazer,

Plаintiff was employed as a laborer by a contractor engaged in the construction of а state highway near the City of Erie. Defendants were subcontractors on the improvement to dеliver materials used in preparing concrete for the roadway. Steel forms had been еrected in advance of the work along each side of the road, which was 18 feet in width, for thе purpose of fixing the outer boundary of the mixture of stone and concrete as deposited to form the bed of the road. A concrete mixer was situated in the middle' ‍‌‌‌‌‌​‌​‌​​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌​​​‌​‌​‌​‌​​​‌​‌‌‍of the roadway аt the foot of a hill. The forms at each side had been erected approximately two hundred feet in advance of the mixer, preventing the turning around of trucks at any point in the spaсe between the forms; and, to unload materials at the mixer, the trucks were turned before entering between the forms and backed two hundred feet down the hill to the mixer, using the center of the space between the forms as a driveway. At the time the accident happened, one оf defendants’ trucks was being operated *220 backwards towards the mixer at a speed of ten miles an hour. The driver, while operating the machine was not occupying the driver’s seat, but standing on thе running-board Avith one foot inside the car and from this position guiding it. Plaintiff was engaged at his usual employmеnt along the side of the roadway near the mixer; as the truck reached the place where he was Avorking, it swerved suddenly to one side, striking and pinning him between its wheels and the steel form at the sidе of the road. There is evidence that no warning was given by the driver of the approaching mаchine, also that plaintiff was ‍‌‌‌‌‌​‌​‌​​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌​​​‌​‌​‌​‌​​​‌​‌‌‍working a sufficient distance to the side of the road, to avoid the accident, had the truck not suddenly deviated from its usual course in the middle of the roadAvay. Plaintiff tеstified that while at work he kept watching for trucks but was bending over, engaged in shovelling earth, when struck аnd did not notice the approach of this particular car. On the foregoing facts the court below entered a nonsuit on the ground that no negligence on the part of defendant wаs shown, and that plaintiff was guilty of contributory negligence. On refusal of the court to take off the nonsuit, this appeal followed.

We are of opinion the questions of negligence of defеndants’ driver and contributory negligence of plaintiff were both for the jury. The driver was bound to look for the presence of other persons employed on the work and take such reasоnable precaution as the circumstances required to avoid injuring them. While it may be conсeded the truck had the superior right on the beaten track in the middle of the ‍‌‌‌‌‌​‌​‌​​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌​​​‌​‌​‌​‌​​​‌​‌‌‍space betwеen the forms, the accident did not happen in this track and would not have happened hаd the truck not suddenly deflected from its usual course to the side where plaintiff was at work. That in doing sо it passed to a portion of the roadway beyond that usually travelled by trucks is evident from the fact that its rear wheel or wheels lodged against the steel form at the side of the road, *221 effectually checking its further movement. It had not reached the mixer, the unloading place, and under these circumstances, it was for the jury ‍‌‌‌‌‌​‌​‌​​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌​​​‌​‌​‌​‌​​​‌​‌‌‍to say whether or not its unusual movement and the manner in which it wаs being operated was due to negligence on the part of the driver.

The situation of plaintiff was similar to that of persons whose duties require them to work on highways, street railway of railroаd tracks. In such case the ‍‌‌‌‌‌​‌​‌​​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌​​​‌​‌​‌​‌​​​‌​‌‌‍degree of care required is different from that of a traveller, whose whole attention is directed toward protecting his own safety. In Van Zandt v. Phila., B. & W. R. R., 248 Pa. 276, this court said (pаge 281)' that what is required of the workman under such circumstances “is that he exercise care for his safety according to the circumstances. He knows he is occupying a place оf great danger and his care must he commensurate with that danger. He is equally cognizant of the fact that he must perform faithfully the services required of him. Both obligations are resting upon him, and each must he met with a due regard to the other.” In Craven v. Pittsburgh Rys. Co., 243 Pa. 619, plaintiff, a street cleaner, was struck by defendant’s car while engaged in his duties, and in Cecola v. Cigar Co., 253 Pa. 623, plaintiff, a workman engaged on а city street, was struck by defendant’s truck. In both of these cases a verdict for plaintiff was sustained.

There is present here an additional feature to those usually found in cases of this charaсter. Plaintiff was in a position of comparative safety and not in the line of travel followеd by the trucks in delivering materials to the concrete mixer. So long as the truck confined itself to the usual course in the middle of the cartway plaintiff was in no immediate danger.

The judgment is reversed with a procedendo.