Brommer v. Philadelphia & Reading Railway Co.
| Decision Date | 04 May 1903 |
| Docket Number | 189 |
| Citation | 54 A. 1092,205 Pa. 432 |
| Parties | Brommer, Appellant, v. Philadelphia & Reading Railway Company |
| Court | Pennsylvania Supreme Court |
Argued January 9, 1902
Appeal, No. 189, Jan. T., 1902, by plaintiff, from order of C.P. No. 4, Phila. Co., Dec. T., 1900, No. 637, refusing to take off nonsuit in case of William H. Brommer v Philadelphia & Reading Railway Company. Reversed.
Trespass to recover damages for personal injuries. Before WILLSON, J.
At the trial it appeared that on August 17, 1900, plaintiff, a brakeman who was in the employ of the defendant, was injured in a collision while riding on the tender of a locomotive. The engineer of the locomotive testified that his orders from the train dispatcher were as follows:
"My orders were to run the south-bound track carefully; that there were fifteen cars on the south bound at Front street and that an engine was coming from Richmond to move them to Richmond; that I should follow those cars down carefully, and after they were shifted the engine would go in the house."
It appeared that the cars were not at Front street but at Second street which was 1,200 or 1,300 feet nearer. The engine was run carefully, but in the darkness collided with the cars at Second street, and plaintiff was injured.
The court entered a compulsory nonsuit which it subsequently refused to take off.
Error assigned was refusal to take off nonsuit.
Judgment reversed and procedendo awarded.
Richard P. White, with him Andrew C. Wylie, for appellant. -- The train dispatcher was a vice principal: Lewis v. Seifert, 116 Pa. 628; Goodman v. Del. & Hudson Canal Co., 167 Pa. 332.
The negligence of fellow servants is no defense where the negligence of the master in any degree contributed to the result: Paulmier v. Erie R.R. Co., 34 N.J. 151; Hunn v. Michgan Central R.R. Co., 78 Mich. 513 (44 N.W. 502).
The duty of inspection and of proper repairs was on the master. This could not be delegated: Penna., etc., Canal & R.R. Co. v. Mason, 109 Pa. 296; Ross v. Walker, 139 Pa. 42; Devlin v. Phoenix Iron Co., 182 Pa. 109; Phila. & R.R. Co. v. Huber, 128 Pa. 63.
Gavin W. Hart, for appellee.
Before MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.
It is conceded that under the decisions the train dispatcher within the limits of his employment was a vice principal: Lewis v. Seifert, 116 Pa. 628.
The negligence charged in the plaintiff's statement, includes among other things, erroneous information and a misleading direction by the yard master which were averred as at least in part the cause of the accident. The direction complained of was as stated by the engineer: "My orders were to run the southbound track carefully; that there were fifteen cars on the southbound at Front street, and that an engine was coming from Richmond to move them to Richmond; that I should follow those cars down carefully, and after they were shifted the engine would go in the house." The engine and tender were accordingly run, carefully as alleged, but met the standing...
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