Cooper v. Butler

• Decision Date: 01 October 1883
• Citation: 103 Pa. 412
• Parties: Cooper, Hewitt & Co. <I>versus</I> Butler.
• Court: Pennsylvania Supreme Court

103 Pa. 412

Cooper, Hewitt & Co. versus Butler.

Supreme Court of Pennsylvania.

April 23, 1883.

October 1, 1883.

April 23th 1883.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Bucks county: Of January Term 1883, No. 285 B. F. Fackenthall and A. & J. Fackenthall, for the plaintiffs in error.—When the plaintiffs in error hired the defendant in error to watch the track and report defects, they had a right to presume that he would do so, and if his violation of this duty contributed directly to the accident he cannot recover. Whether or not he was directly employed to inspect the track, matters not, as it became his implied duty in taking charge of the car. This being so, whether the accident occurred through a rotten stringer, or as we contend through a defective brake, the plaintiff was employed to inspect both and report defects to the proper authorities. His failure to do so was a neglect of duty, and he cannot recover for injuries to himself resulting from an accident which was due to his own negligence. If the jury found these facts to be so, we were entitled to an unqualified affirmation of our seventeenth point and its qualification by the court was error.

James F. Lynd and John L. Du Bois, for the defendant in error.—As matter of fact, we maintain that the defendant in error did give frequent notice of the defects in the track to his superior. It is, however, immaterial, for we contend as matter of law that such notice was unnecessary. The company was bound to know that its stringers would decay and had decayed in the lapse of time, and through the wear and tear of long-continued use: Baker v. Allegheny Valley R. R. Co., 14 Norris 211, 215.

Mr. Justice CLARK delivered the opinion of the court, October 1st 1883.

This action was brought by William Butler against Cooper, Hewitt & Co., to recover damages for injuries received by him, on the 24th day of November 1879, whilst in their employment at the Durham Iron Works in Bucks county. The matter urged in support of the action is the negligence of the defendants in not keeping in proper repair a certain elevated tramway, upon which, by means of a stationary engine, coal cars were operated in the transportation of coal from the canal to the stock house, for use in the furnace. The tramway was about 1300 feet long, it was inclined, rising about 69 feet in that distance, about 500 feet of it was elevated upon a trestle, from ten to twenty feet in height. The cars ran upon an iron rail, spiked upon stringers. The empty cars in returning from the furnace to the canal descended by gravity, and were regulated in their velocity by a brake on the car in charge of the conductor, and by the engineer, who was stationed in a tower, overlooking the entire track and had control of a brake on the drum.

On the day mentioned two cars, coupled together, were descending the plane, the front one conducted by Stewart Leister and the rear one by William Butler, the plaintiff, when owing, as it is alleged, to a displacement of the rail, they ran off the track, and falling some 16 or 17 feet, Butler fell with them and broke his arm at the wrist.

Seventeen errors are assigned to the rulings of the...