Curtis v. Erie R. Co.

• Citation: 109 A. 871
• Decision Date: 26 April 1920
• Docket Number: No. 254.,254.
• Parties: CURTIS v. ERIE R. CO.
• Court: United States State Supreme Court of Pennsylvania

109 A. 871

CURTIS
v.
ERIE R. CO.

No. 254.

Supreme Court of Pennsylvania.

April 26, 1920.

Appeal from Court of Common Pleas,

Susquehanna County.

Action by James E. Curtis, administrator of the estate of Tulio Trifelli, against the Erie Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

109 A. 872

Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ.

Allan D. Miller and John D. Miller, both of Susquehanna, for appellant.

William A. Skinner, of Susquehanna, for appellee.

FRAZER, J. This action is under the federal Employers' Liability Act of April 22, 1908 (35 U. S. St. 65, c. 149 [U. S. Comp. St. §§ 8657-8665]), to recover for injuries resulting in the death of Tulio Trifelli, a section hand employed in defendant's yards at Susquehanna, Pa. At the close of plaintiff's evidence a compulsory nonsuit was entered because of failure to show negligence on the part of defendant, and the further reason that decedent assumed the risk of the accident resulting in his death.

Decedent's duties required him to assist in repairing tracks, cleaning switches, and removing rubbish, ice, and snow in the defendant's switching yard, which contained 19 parallel tracks. On the day of the accident he, with others, was engaged in removing an accumulation of ice from the bottom of a water crane located between the main tracks and a siding used for switching locomotives to and from coal pockets and to an ash pit. The ice, as removed, was carried by decedent and others across the siding, and deposited in the ash pit on the opposite side of the track. While so employed decedent was struck by an engine, traveling backwards over the siding towards the ash pit at a rate of two or three miles an hour. The accident not having been witnessed by other employes, the exact manner of its occurrence is left to inference. Decedent was seen shortly before the accident, working between the two tracks at the base of the water crane, and apparently either in the act of carrying a shovel filled with ice across the siding to the ash pit or returning from the ash pit to the crane. At the place of the accident decedent had an unobstructed view of the approach of the engine for a distance of at least 150 feet. No warning was given by those on the engine, either by bell or whistle, or in any other manner. The foreman who ordinarily gave notice of approaching engines, which was merely a call to "look out," was not present, and...