214 Pa. 165 | Pa. | 1906
Opinion by
The learned court below refused to take off a nonsuit directed to be entered at the trial and this appeal is intended to test the correctness of that ruling. The appellant relies on the rule of law that a motion for a nonsuit admits all the facts and inferences that may be fairly drawn from the same proven by the plaintiff at the trial. This contention is amply supported by our cases. It does not follow, however, that in the case at bar such facts were offered in evidence as to permit a jury to draw an inference of negligence. A jury cannot be permitted to find anything negligence which is less than failure to discharge a legal duty: Phila. & Reading Railroad Company v. Hummell, 44 Pa. 375. What legal duty did the defendant company fail to discharge to the appellant? It is argued that it did not provide a safe place in which to work. If the facts supported this contention, it might have been a proper case for the jury. We do'not so understand the facts.
It appears from the testimony that on the day of the accident the appellant, an employee of the appellees, was sent down to fit the injector pipes in the cab of a locomotive standing on a railroad track in the Reading subway. It cannot be seriously contended that working in the cab of an engine is dangerous or unsafe, nor that the appellees are to be charged with negligence because they sent their employee to do work therein,
Did the evidence disclose any facts which would charge the appellees with negligence subsequently ? It appears that while the engine was standing on the railroad track a locomotive, called in the testimony an “ old engine,” came along the same track from the east and pushed the engine on which the appellant was working in the direction of Twenty-first street, at which point a box freight car was standing on a side track too close to the switch to allow the moving engine to pass safely. As a result there was a collision between the moving engine and the standing freight car. The cab of the engine was wrecked and appellant was severely injured. The accident occurred on the tracks of the Reading Railway Company, a considerable distance from the works of the appellees. The negligence alleged in the statement of claim, in substance charges that the appellees permitted the “ old engine ” to run over the tracks of the Reading Railway Company so that the locomotive on which the appellant was working came in collision with the box freight car standing on the tracks of the said railway company, hurling him to the roadbed thereof, thus causing the injuries for which damages are sought to be recovered. The •weakness of the appellant’s case is that there is no evidence that the appellees are responsible for this alleged negligence. The testimony did not show that the “ old engine ” was owned, operated or controlled by the appellees, nor that they had anything to do with its movements, or that it pushed the engine on which appellant was working at their instance or by their direction. The probable cause of the accident was the location of the freight car which stood so near the switch that the engine could not pass without a collision. It is not even contended that the appellees had any control over or were in any way responsible for the location of the freight car. Under these circumstances, it cannot be said that they failed in the performance of any legal duty owed by them to the appellant in this respect.
The learned counsel for appellant argues at length that the accident was due to an increased danger or risk not incidental
Judgment affirmed.