120 Pa. 414 | Pa. | 1888
Mr. Justice Clark :
The plaintiff in this case, on the 27th of September, 1883, was, and for some time prior to that had been, an employee of the Pittston Coal Company. He was at that time a lad of twelve or thirteen years of age, and was employed to oil the machinery in the breaker. On the day mentioned, however, he was temporarily sent into the mines, to serve as a driver, in which capacity it was his duty to hitch a mule to loaded cars at the heading, and drive the mule on a side track a mile or more to the main or loaded track at the foot of the slope, where the mule was detached from the car and hitched to an empty one, which was hauled over the same route to the heading. The grade of the side track for fifteen or twenty yards from the place of its connection with the loaded track, as well as the grade of the loaded track, for some distance from the same point, was sufficient for the loaded cars to run slowly, by gravity, towards the foot of the slope. What is called a “stretcher” was used in hitching the mule to the car, and as the car came upon the loaded track, and approached the loaded cars standing thereon, it was the duty of the driver to stop the mule, detach the stretcher, and allow the animal to step off the track and out of the way of the moving car, in order that it might drop down the grade in the rear of the others.
Assuming all this to be so, the difficulty in the plaintiff’s case is that the injury does not appear to have occurred from any vicious habit or conduct of the mule. From all that has been shown, it appears that when the boy reached down to detach the stretcher, the mule “ started out again,” and in consequence of this, and this only, the injury occurred. The occurrence is thus stated by the plaintiff himself:—
Q. You were bringing out the sixth car you say? A. Yes, sir, coming out with the sixth car, the loaded track was full, and I hollered “ whoa ” to the mule when I thought it was fit to unhitch, to get her out of the road. Q. What do you mean by fit to unhitch? A. Why, to get the mule out of the road. Q. To get the mule out of the road before the mule ran against the last loaded car — is that it? A. Yes, sir; then he stopped and I bent over for the stretcher and he started out again, and the stretcher come up like that (illustrating) and catched me in the breast, knocked me across the stretcher and that is all I know about it.
There is no pretence that the mule attempted to bite, or to kick the boy, and there is no evidence that he tried to run away. The car was moving slowly down the grade by its own
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 of the injury. Upon an examination of the whole case, we fail to find the slightest evidence that the injury complained of resulted from any vicious habit or conduct of this mule. We are not to assume that when he “ started out again,” he started to run away; the testimony is wholly to the contrary.
We find nothing in the evidence to justify a submission of the case to the jury, and therefore,
The judgment is reversed.