248 Pa. 276 | Pa. | 1915
Opinion by
This is an action for personal injuries. The verdict was for the plaintiff, which was set aside, and judgment
The defendant let to the American Paving and Construction Company a contract for the erection of a concrete bridge over its tracks at Seventy-Second street in the City of Philadelphia. The plaintiff is a carpenter and when he was injured was in the service of the defendant’s contractor. He was engaged with two fellow-workmen in taking down and replacing the wooden forms for the concrete work of which the piers of the bridge were being constructed. His duties were to prepare the braces used in holding the forms in place. He was struck on the left shoulder by a train on the northbound track as he stood by the side of the track sawing out the braces. The collision threw the plaintiff to the ground, rendered him unconscious, and injured him severely. The plaintiff and his two fellow-workmen were required to perform their work in the space between the defendant’s tracks and the bridge pier. At the time he was injured, the plaintiff had been working off and on five or six months at the place where the accident occurred.
The negligence alleged by the plaintiff as the basis of his action was the failure of the defendant to give warning or .notice of the approach of the train which struck and injured him. The court submitted to the jury to determine the negligence of the defendant, as well as the contributory negligence of the plaintiff. The jury’s finding was with the plaintiff on both propositions. The learned judge entered judgment for the defendant on the ground that the plaintiff was guilty of contributory negligence. He held that the defendant’s duty to the plaintiff was of no higher degree than its duty to one endeavoring to pass over its tracks at a public crossing, and that the plaintiff was held to the same measure of care for his safety as such person would be. In his opinion entering judgment for the defendant, the learned judge said: “It is clear that the plaintiff’s injuries were caused by his
Tbe learned court was in error as to tbe law applicable to tbe case and, also in bis view of tbe facts disclosed by tbe evidence on the trial of the cause.
It is settled in this jurisdiction at least that tbe rights and duties of a person lawfully engaged on and near a railroad track are essentially different from those of a person about to cross such track at a public crossing. Tbe two situations are entirely different. A person about to pass over tbe tracks of a railroad at a public crossing is required to stop, look and listen for an approaching train. He must continue to look and listen until be has passed entirely beyond tbe tracks. His duty does not require him to stop on or so near tbe track that be may be struck by a passing train, and be must recognize that bis only right there is one of passage, and any unnecessary delay in or near tbe tracks resulting in bis injury will convict him of negligence which will defeat a recovery against tbe defendant company. Tbe railroad company has tbe right to a clear track even at a public crossing, except the necessary time required by tbe traveler to pass over tbe crossing when be has, exercising proper care, ascertained that no train is approaching His only duty at tbe crossing, therefore, is actively watching and avoiding a collision with a passing train. Tbe duty of tbe railroad company is to operate its trains at a public crossing Avith a due regard to tbe rights of tbe traveler, and such duty requires tbe persons operating tbe train to give proper notice or warning of its approach to tbe crossing in anticipation that a traveler may be intending to pass tbe crossing. Tbe same rules of conduct, however, cannot be applied to a railroad company and one employed on or along its tracks. Tbe
The distinction between the rights and duties of persons lawfully engaged on or about railroad tracks and the rights and duties of persons passing over the tracks at a public crossing is recognized and enforced 'in many adjudicated cases. In Ominger v. N. Y. Cent. & Hudson River R. R. Co., 4 Hun. (N. Y.) 159, the plaintiff was an employee of a contractor who had a contract with the railroad company to certain work on its road. While engaged at his work he was injured by a passing train. Holding that a nonsuit was erroneously entered, the court said, inter alia: “It is hardly possible to apply this rule (as to travelers about to cross a track), in its strictness, to a workman engáged on the track. The traveler looks once and crosses; the workman remains. If it is the workman’s duty as a matter of law to look in both directions he must do this as often as possible for a train to come in sight. Such an obligation would be inconsistent with his proper attention to his work. I do not think, therefore, that the rule which has been applied to travelers crossing the track is applicable to workmen whose employment requires them to remain on or about it.” In Wells v. Brooklyn Heights R. Co., 67 N. Y. (App. Div.) 212, the court held that the plaintiff’s contributory negligence in such a case was for the jury, and said: “His obligation, if he were a workman then and there properly at work, was not that of a traveler about to cross a track.” This principle is discussed and applied not only in our own jurisdiction but in decisions in a great number of other jurisdictions. In Owens v. Peoples Passenger Ry., 155 Pa. 334, an employee of the city was laying water pipe under defendant’s tracks, and while so engaged was struck by one of defendant’s cars which approached without proper warn
The application of the wrong principle of law by the learned .court led it astray as to the conclusion on the facts. Applying the proper rule as to the rights and duties of the respective parties to this litigation, the plaintiff’s negligence was clearly for the jury. The learned court in a clear and comprehensive charge submitted the question to the jury and they found that the plaintiff had observed the care required of him under the circumstances and was not guilty of negligence. He was not a trespasser nor a licensee on the defendant’s property. His work required his presence at the point where he was injured and he necessarily had a right to be there. He was not, as the learned court seemed to think, remiss in not informing himself exactly of the scheduled time for the arrival of the train at the place of the accident. The accident occurred in West Philadelphia and on the defendant’s road running south. It goes without saying that many and frequent trains, passenger and freight, are run upon the road. The defendant’s fireman' testified that the freight trains did not run on schedule time. It was certainly a question for the jury to say whether it could be reasonably expected that the plaintiff should have familiarized himself from the schedule with the time at which each passenger train would pass the place of the accident. Had he done so he would still have been endangered by special or late trains or freight trains having no scheduled time. It is also suggested by the learned court that neither the plaintiff nor his fellow-workmen had given
We have examined the testimony with care, and can see no such dereliction of duty on the part of the plaintiff as to justify the court in declaring him guilty of negligence as a matter of law. It appears by the evidence that the workmen engaged at the place of the accident depended on a signal to warn them of approaching trains, that, the plaintiff also watched for trains, and that on this occasion he “looked down the track to see if there was any train approaching.” The three workmen testified that no signal by bell or whistle was given of the approach of the train which struck the plaintiff. Obviously he was too near the track when the train was passing or he would not have been struck. If he knew of the approach of the train in time to escape the collision, it was negligence in his failing to do so. It was also his duty to keep a reasonable lookout for trains. He was in the proper discharge of the duties of his employment at the time he was hit by the train, and whether the collision was caused solely by the negligence of the defendant, as the jury found, was a question of fact to be determined by the tribunal established by the law for that purpose.
The assignment of error is sustained, the judgment is reversed, and the court below is directed to enter judgment on the verdict in favor of the plaintiff and against the defendant.