151 Pa. 74 | Pa. | 1892
Opinion by
The accident was at a grade crossing and it may have resulted from the failure of the driver of the sprinkling wagon to look and listen, or from the neglect of the appellant’s employees to ring the bell or blow the whistle. There is evidence that the driver immediately after the coal train passed and while the rear of it could be seen from the place where he stopped, started to cross the track. He doubtless took it for granted that the way was clear after the coal train was off the crossing and did not look and listen to discover whether another train was following it. There is evidence also that the approach of the locomotive which struck his team was not announced by the ringing of the. bell or the blowing of the whistle. But the jury were correctly instructed that there could be no recovery in this case on the ground of a failure to give these signals, because such failure would be the negligence of a servant for which the appellant would not be liable to a fellow servant or his legal representatives; and the verdict does not inform us whether they were given, and, if they were not, whether the omission to give them caused or contributed to the accident. If the negligence of a fellow servant was the direct and immediate cause of the accident, it is by no means certain that this action can be maintained, even though it should appear that the appellant was negligent in not providing a watchman for the crossing. We do not intend, however, to discuss the matters to which we have referred; we merely allude to them in passing as they were suggested by a careful reading of the testimony, and the instructions to the jury.
The case is before us on the contention of the appellant that the court should have taken it from the jury on the ground that Rumsey’s death was attributable to a risk incident to his employment and which with full knowledge of its character he had assumed, and to his own negligence in being at the time of the accident in a place of known danger and where his duties did not call him.
It appears from the undisputed evidence that Rumsey was
It is therefore unnecessary to consider the other questions raised in the case.
The fifth specification of error is sustained.
Judgment reversed.