104 Pa. 511 | Pa. | 1883
delivered the opinion of the court, January 7th 1884.
On and before the 19th of November 1881, Prank Richter, the deceased, was employed in and about the rolling mill of the Oliver Brothers! Leading into’this mill there was a switch or side track, from the defendant’s railway, on which, as necessity required, the cars of the company were run for the purpose of carrying material to and from the said mill, or iron works.
Richter’s business was to haul, or assist in hauling, in a hand vehicle, called a buggy, ashes and cinders from the furnaces in the mill, across the switch above mentioned, to that part of the grounds of the firm set apart for their reception, and, as the proof is,'the decedent and his brother had, in this manner, hauled these ashes and cinders on the same line or way, for a period of nine months before the accident. On the morning of the day above stated, whilst Richter was thus engaged, he found his way across the switch blocked by some unattached and empty cars. These he uncoupled and attempted to move them out of his way, and whilst so employed an engine, approaching without warning of any kind, struck the cars that were behind him, forced them upon those he was pushing, and so crushed the life out of him. The court below was of the opinion that as this man was, at the time of his death, engaged on a railroad, and about a car thereof, the case was embraced by the provisions of the Act of April 4th 1868, hence, directed a peremptory non-suit. In support of this ruling three cases are cited: Mulherrin v. Delaware, Lackawana and Western Railroad Co., 31 P. F. S. 376; Ricard v. Pennsylvania Railroad Co., 8 Nor. 195, and Cummings v. Pittsburgh, Cincinnati & St. Louis Railroad Co., 11 Nor. 82. In our-
In neither case is such person employed on or about a railroad, but in and about his own business, on and about his own road, and if he finds an obstruction in any part of that road, he has the right to remove it. In this we do not undertake to say that Richter was justified in attempting to move the car at the time, or in the manner, this attempt was made. That depends
J udgment reversed and a new venire awarded.