259 Pa. 438 | Pa. | 1918
Opinion by
The plaintiff brought this action of trespass to recover damages for injuries resulting, as he claimed, from the negligence of an employee of defendant company.- He was employed as a locomotive fireman, upon an engine drawing á train engaged in interstate commerce, so that the case is governed' by Federal law, and the fellow-servant rule does not' apply. The contention of the plaintiff is that, on April 24,1914, his engine had stopped at a yard, en route, and was being supplied with water. He was at the time standing upon the tender holding the arm of a water spout. Another locomotive stood upon
The trial judge left to the determination of the jury the question whether, when the engineer blew the Avhistle, he should, ás a man of reasonable prudence, have anticipated the danger of injury to the plaintiff, AArho was in rather close proximity to the Avhistle, and, should, therefore, have given him warning before it-was blown. The verdict of the jury must be accepted as a finding that under the circumstances, danger of injury to the plaintiff from the bloAving of the whistle Avas reasonably to have been anticipated, and that the engineer Avas guilty of negligence in failing to Avarn plaintiff before bloAving the Avhistle. Prom the judgment entered upon the verdict, defendant has appealed, and the question is, Avhether the verdict was justified by the evidence.
Admittedly,the question,whether plaintiff was injured as claimed, was for the jury; but counsel for appellant urge that there was no evidence Avhich justified a finding that the experience or knowledge, which an engineer might be expected to have, should have warned him not to blow his Avhistle without first giving notice to the plaintiff. As the record stands, we think this point is well taken. In the evidence which was admitted, Ave can find nothing from which the jury were warranted in finding that defendant or its servants had reason to anticipate that blowing the whistle as alleged by plaintiff, at a distance of ten feet from where he was standing, was
Upon the record as it stands, the judgment is reversed with a venire facias de novo. .