236 Pa. 89 | Pa. | 1912
Opinion by
This was an action of trespass brought to recover damages for the death of the plaintiff’s husband who was killed while employed as an extra brakeman shifting freight cars in the defendant’s yard at South Bethlehem, Pennsylvania. The learned judge of the court below directed a verdict for the defendant on the ground that by the undisputed testimony of the defendant’s witnesses the deceased knew or should have known of the danger and, therefore, assumed the risk which resulted in his death. We think the learned judge misapprehended the effect of the testimony and his duty in the premises.
Fred Robson was employed by tbe defendant as an extra brakeman in its freight yard at South Bethlehem
The bridge which caused the accident crosses the four main tracks and fifteen sidings of the defendant’s road at a height of eighteen feet and one inch. The space between the top of the cars on which Robson was working and the bridge was four feet and eleven inches. Robson was about five feet seven inches tall, and hence the bridge was eight or nine inches too low to allow him to pass when standing erect on the top of a car. Neither could a man of ordinary height standing on a car, it will be observed, pass under the bridge with safety. There were no lights under the bridge or in the yard, but a few city lights on top of the bridge. There were “tell tales” or dangling ropes to warn brakemen of the approach to the bridge over two of the main tracks but none over the sidetracks. Whether it was customary to use signals of approach to bridges under such circumstances was, under the evidence, a disputed fact.
The statement alleges that the defendant company was negligent in maintaining and permitting to be maintained the bridge over the tracks in such proximity to
The witnesses on the strength of whose testimony the court directed the verdict were all in the service of the defendant company and to that extent were interested. The testimony of the witness Bush was in part contradicted. The jury Avould have been justified in finding that Robson worked only four nights in the defendant’s freightyard. This was inferentially established by the failure of the defendant company to produce its other time sheets, and could also have been found from the testimony of the defendant’s Avitnesses. Robson lived at Easton, twelve miles distant from South Bethlehem, was employed as an extra brakeman, and was sent to one place or another as his services were needed. The •testimony relied on by the court to sustain its action in directing the verdict shows at most that Robson worked only four nights in the South Bethlehem yards, and that the crews with Avhich he worked passed frequently under the bridge. It fails to show that he had passed under the bridge while riding on the top of a car, or, in fact, that he had passed under the bridge at all until the night of the accident. The collision with the bridge which resulted in Robson’s death occurred the first time
The cases relied on by the appellee are clearly distinguishable from the one at bar. Pour of' them were cases of nonsuit where the defendant produced no evidence. In another case, binding instructions were given for the defendant. In all of them there was no doubt that the deceased was perfectly familiar with the danger which resulted in his death. That is a question of disputed fact in the present case, and is necessarily for a jury.
The judgment is reversed with a venire facias de novo.