279 Pa. 111 | Pa. | 1924
Opinion by
This appeal by plaintiff is from the trial court’s refusal to take off a compulsory nonsuit, granted in his action against the defendant railroad company for personal injuries sustained by him while in its employ as a brakeman. Such refusal was error. Defendant has a freight yard along the south side of its main tracks at East Liberty, where, on the evening of August 27, 1921, plaintiff was engaged with other members of a local crew in making up an out-going train. For that purpose they had placed cars (herein called the line) on a siding and were attempting to add two others by an engine pushing them back against the line. When they got within about two hundred feet of the latter, the engine and the two cars were stopped that plaintiff might alight and turn a switch on the north side of this track. Then, while standing outside of the track, he attempted to adjust the automatic coupler on the end of the car facing the line, by the use of the lever, but it would not operate, so he stepped in between the rails and adjusted it by hand. Then he attempted to step off the track to the south, where his duty called him, but before he could do so, was hurt by a sudden movement of this car, caused by an unexpected push of the engine.
The trial court based its action on the ground of the absence of proof that the cars causing the injury were at the time engaged in interstate commerce; and on the
It is the duty of the railway company to equip its cars with safety appliances and to maintain the same; from which it can be discharged only by performance. See Chicago, B. & Q. Ry. v. United States, 220 U. S. 559; Great Northern Ry. Co. v. Otos, 239 U. S. 349; Minneapolis & St. L. R. Co. v. Gottschall, 244 U. S. 66; Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497; San Antonio & A. P. Ry. v. Wagner, supra.
The failure of the employer to comply with the statute, however, must be the proximate cause of the injury (Great Northern Ry. Co. v. Otos, supra; Spokane & I. E. R. Co. v. Campbell, supra; Louisville R. Co. v. Layton, 2á3 U. S. 617; Lang v. New York C. R. Co., 255 U. S. 155), that is, the immediate or nearest cause. In the instant case it may well be so considered, for it was Sims’ duty to adjust the coupler, and its defective condition rendered it necessary for him to go close behind the car, where he was struck, which otherwise he need not have done. The unexpected movement of the car was rather the condition than the cause of the accident. There is necessarily more or less movement connected with the act of coupling cars, but that does not excuse where an employee is compelled to put himself in a place of danger because of a defective appliance. In Louisville & Nashville R. Co. v. Layton, supra, Mr. Justice Clarke, speaking for the court, says: “The language of the acts and the authorities we have cited make it entirely clear that the liability in damages to employees for failure to comply with the law springs from its being made unlawful to use cars not equipped as required,— not from the position the employee may be in or the work which he may be doing at the moment when he is injured. This effect can be given to the acts and their wise and humane purpose can be accomplished only by holding, as we do, that carriers are liable to employees in damages whenever the failure to obey these safety appliance laws is the proximate cause of injury to them when engaged in the discharge of duty.” In such case courts are prone to attribute the injury to the defect.
The question of assumption of risk is not available to one who has violated the federal statutes relating to safety appliances; section 8 of the Act of 1893 expressly so provides. See Southern Ry. Co. v. Crockett, 234 U. S. 725; Schlemmer v. Buffalo R. & P. Ry., 220 U. S. 590. Cases, however, growing out of intrastate traffic are governed by state laws, except as modified by the federal safety appliance acts: Minneapolis, etc., Ry. Co. v. Popplar, supra; Roberts Federal Liabilities of Carriers 1288.
The federal statutes so far as relate to injuries sustained in intrastate traffic on an interstate railway, leave untouched the question of contributory negligence: Minneapolis, etc., Ry. Co. v. Popplar, supra; Schlemmer v. Buffalo, R. & P. Ry. Co., supra, affirming 222 Pa. 470. But in the instant case no question of contributory negligence was raised in the trial court, nor is it here, and the evidence discloses nothing that would, as matter of law, defeat plaintiff’s claim upon that ground.
In the absence of any adequate proof of plaintiff’s inability to secure the production of the original bill of lading of the car in question, the trial judge properly
We have stated the facts as plaintiff’s evidence tends to show them, without intending in any manner to prejudice the further consideration of the case.
The evidence of the physicians and others, as to the extent of plaintiff’s injuries, has no bearing on the questions raised by the appeal and should not have been printed in the record. See Revised Court Rule 55.
We have not discussed the Federal Employers’ Liability Act, as that is limited to interstate traffic: Roberts Federal Liabilities of Carriers 775.
The order refusing to take off the nonsuit is reversed with a procedendo.