Vorhees v. Lake Shore & Michigan Southern Railway Co.

193 Pa. 115 | Pa. | 1899

Opinion by

Mr. Chief Justice Sterrett,

The supposed defect on which the motion to quash this appeal is based was cured by the certificate of the learned judge who specially presided at the trial, and the motion is therefore denied.

This action was brought to recover damages for personal injuries suffered by the plaintiff while in the service of the defendant company as rear end brakeman on one of its through freight trains. At the point where the accident occurred, in the borough of North East, there are five tracks, viz: two main tracks, two main sidings, and an extra siding or “ spur,” known as Porter siding, constructed for the purpose of accommodating the grape traffic at that point during the autumn months. The regulation distance between the tracks on defendant company’s road is from seven feet to seven feet, two inches, but the Porter siding was so constructed as to leave only from five feet, six inches to six feet between it and the south main siding. The space thus left between the south rail of the south main siding and the north rail of the Porter siding was alleged to be insufficient to enable a brakeman of a freight train on the former to safely discharge his duties when cars were on the Porter siding. The freight train on which plaintiff was employed was switched from the main track west to the south main siding to permit a west bound passenger train to pass. When that train had passed and plaintiff’s train was being moved from the siding to the main track from which it had been switched, it was his duty to see whether his conductor was at the switches for the purpose of closing them, and, if he was not, it became plaintiff’s further duty to close them. Finding that the conductor was not there, he undertook to descend from the top of the cars, and while on the ladder at the side of one of them he was struck and thrown down by coming in contact with a car standing on the Porter siding, and part of the train passed over his left leg, crushing it so that amputation became necessary.

Plaintiff testified fully and minutely to all the facts and circumstances connected with the accident, explaining why and how he attempted to descend from the car, etc. Among other things he said he had been in the employ of the company for a number of years, running on that division, but he had never before been on that particular siding, and had no knowledge, at that time, that the space between it and the Porter siding or “ spur ” was so narrow; that as his train pulled out “and got near the switches,” he “got in position” where he could look and see that the conductor was there to close the switches, and, not finding him there, it became his “ duty to go down the side of the car on the south ladder,” where he was struck.

Without further reference in detail to the plaintiff’s testimony, it clearly appears that the evidence before the court and jury tended strongly to show the faulty construction of the Porter siding, and the dangerous man-trap that was thereby set for brakemen and other employees of the company. The evidence was quite sufficient to carry the case to the jury on the question of the defendant company’s negligence as the proximate cause of plaintiff’s injury.

In Brossman v. Lehigh Valley Railroad Co., 113 Pa. 490, this Court said: “ Where a railroad company negligently plans an obstruction over its roadway, dangerous to the lives of its employees, it fails in its duty to them, and, therefore, if a person enters the service of the company in ignorance of such danger and remains ignorant thereof until injured or killed by it, the company is liable for damages.” In Pitts. & Connellsville Railroad Company v. Sentmeyer, 92 Pa. 276, it was said: “ Where a railroad company voluntarily subjects its employees to dangers which it ought to provide against, and an accident happens to an employee from want of proper provision against such dangers, the company is undoubtedly liable.”

The improper construction of the Porter siding created a positive danger, but it was one of such a character that it would ordinarily escape the notice of the most careful brakeman unless his attention was specially directed thereto. E. S. Hagen, who had two years’ experience as brakeman on the road, testified that he had no knowledge of this dangerous place prior to the accident.

A careful consideration of all the evidence, with special reference to the several specifications of error, has satisfied us that the case depended on questions of fact which were properly for the consideration and determination of the jury. Taking this view of the evidence, the learned trial judge refused to affirm defendant’s prayers for binding instructions in its favor, and, in an elaborate and fully adequate charge, submitted the case to the jury on the questions of defendant company’s negligence and the alleged contributory negligence of the plaintiff. We are not convinced that there was any error in thus submitting the ease. The findings of fact on which the jury must have based their verdict were warranted by the evidence before them. When plaintiff was injured he was acting in the plain discharge of his duty to the company defendant. He was using the appliances that it had provided for him. He testified positively that he was not acquainted with the Porter siding. Whether, from his experience, or from opportunities of examination afforded him before the time of the accident or otherwise, he knew, or ought to have known, the dangerous character of that siding, whether or not he was justified in choosing the time and manner of Ms descent from the top of the car, and whether or not, under the circumstances, and especially in view of the duties he was required to perform, he was guilty of any act of negligence which contributed to his injury, etc., were necessarily questions of fact for the jury, under all the evidence before them. The defendant company has certainly no reason to complain of the manner in which these and other, questions were submitted.

Finding no substantial error in the record, the assignments of error are dismissed and the judgment is affirmed.