243 Pa. 562 | Pa. | 1914
Opinion by
There was evidence to warrant the jury in finding sufficient facts to support the verdict for the plaintiff and the case was, therefore, for the jury. The accident occurred and the plaintiff lost his leg by reason of the disobedience of the “slow” order by the trainmen operating the train which struck the plaintiff, and their failure to give the proper signals of the approach of the train to the trestle or bridge. A concrete bridge was being built by the plaintiff’s employer, the McKelvy-Hine Company, for the defendant railway company. He was, therefore, indirectly working for the defendant in the construction of the bridge. He had charge of the mixer and one of his duties required him to see that the cement did not clog, and that it flowed freely through the chute to the forms which were directly below the trestle or steel bridge. It is true he could have inspected the chute by going beneath the trestle, but if the material clogged in the chute and the mixer had to be stopped he would have had to communicate with the man operating it through two or three other men instead of giving the signal direct. The customary and habitual way of performing this duty was to go on the trestle about fifty or sixty feet east of the mixer from which point he could observe the flow of the concrete
There can be no question under the evidence that the employees of the construction company, engaged in erecting the'concrete bridge, used the trestle from the time the work was begun in May until the accident happened on the thirtieth of July following. This was done without any protest or objection by the defendant company. In addition to the use made of it by Reed, the plaintiff, in inspecting the chute, he and the other employees used it for many purposes, such as to repair the chute, to cross to the company store for anything they wanted, and in carrying material and tools from one side of the creek to the other. They also laid a pipe line on the trestle to carry steam across the bridge to operate a pump which was pumping water from the excavations on the other side of the creek. The men would cross in gangs of a dozen or fifteen at a time, and the testimony is that the trestle was used by them daily and almost hourly until the accident occurred. This use of the bridge was made in the presence of and with the knowledge of the defendant’s inspectors of the trestle and of the concrete work, both of whom were in daily attendance upon their duties, and also with the knowledge of the defendant’s master carpenter, in charge, who visited the work at frequent intervals.
The evidence was sufficient, we think, to warrant the jury in finding that the McKelvy-Hine Company’s em
The question of the plaintiff’s negligence was for the jury. If he was properly on the bridge in discharge of his duties and was justified in believing that the “slow” order would be observed by trains passing over the trestle, there was no evidence in the case which would convict him of any negligent conduct. He was not exposing himself to an open and obvious danger while he was on the bridge, but was perfectly safe so long as the defendant’s employees observed the company’s rules in the operation of the trains. His risk or danger did not come from any act of his, but from an unanticipated negligent act on the part of the company’s employees in failing to run the train according to the “slow” order and in not giving proper signals of the approach of the train. It is true, as suggested by appellant’s counsel, that the plaintiff knew that the defendant company was using the bridge regularly for its scheduled trains and for its picnic trains, but the evidence does not show that he knew or ought to have known that the company was running any of its trains in disobedience to the “slow” order which required them to run at a rate not exceeding four miles an hour as they crossed the trestle. He, therefore, had a right to assume that the' defendant would operate its trains in accordance with the special order while they were crossing the trestle. It was the disregard of this order and the failure to give the proper signals by the crew operating the train which struck the plaintiff and not his own negligence, that caused his injuries. •
The judgment is affirmed.