Dawson v. Reading Co.

• Decision Date: 07 May 1928
• Docket Number: 123
• Citation: 293 Pa. 301,142 A. 295
• Parties: Dawson, Administratrix, v. Reading Co., Appellant
• Court: Pennsylvania Supreme Court

142 A. 295

293 Pa. 301

Dawson, Administratrix, v. Reading Co., Appellant

No. 123

Supreme Court of Pennsylvania

May 7, 1928

Argued April 16, 1928

Appeal, No. 123, Jan. T., 1928, by defendant, from judgment of C.P. No. 5, Phila. Co., Dec. T., 1925, No. 6997, on verdict for plaintiff, in case of Malissie B. Dawson administratrix of the estate of Joseph Dawson, deceased, v Reading Company. Reversed.

Trespass for death of plaintiff's husband. Before HENRY, P.J., specially presiding.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff for $ 4,500. Defendant appealed.

Error assigned, inter alia, was refusal of judgment for defendant n.o.v., quoting record.

The judgment is reversed and is here entered for the defendant.

Wm. Clarke Mason, for appellant. -- The record fails to show the existence at the time of suit of a beneficiary having the relationship designated by the federal statute as one for whom a recovery could be sustained: Gulf, etc., Ry. v. McGinnis, 228 U.S. 173; Musser v. Stauffer, 178 Pa. 99; Linton v. Moorhead, 209 Pa. 646.

Plaintiff failed to establish negligence on part of defendant on which to base cause of action under Federal Employers' Liability Act: Murray v. Ry., 249 Pa. 126.

Plaintiff is barred from recovery because the evidence shows that Dawson, plaintiff's decedent, assumed the risks of the position in which he was at the time of the accident, the inherent dangers of which he knew or is presumed to have known as a matter of law: Connelley v. R.R., 201 F. 54; Connelley v. R.R., 228 F. 322; Hardy v. R.R., 240 Pa. 454; Davis v. Ry., 276 F. 187; Chesapeake & Ohio Ry. v. Nixon, 271 U.S. 218.

John Francis Williams, with him Raymond Pace Alexander and Maceo W. Hubbard, for appellee. -- Not only was there a duty resting on defendant to keep a lookout for workmen in the gang to which deceased belonged, but there would seem to be sufficient warrant for finding of legal duty to do so: Van Zandt v. R.R., 248 Pa. 276.

The doctrine of the assumption of risk is founded on contract and the burden of proving it is on defendant and likewise burden of proving contributory negligence, under the federal statute: Central Vermont Ry. v. White, 238 U.S. 507; McAvoy v. Ry., 283 Pa. 133.

It is well settled that the defense of assumption of risk does not extend to assuming the risk of the negligence of a fellow servant: Reed v. Dir. Gen. of Rys., 258 U.S. 92; McAvoy v. Ry., 283 Pa. 133.

The failure to give the customary warning as shown in the instant case, is an unusual and unexpected act not to be ordinarily foreseen and the risk of which is not assumed by the employee: Dutrey v. Ry., 265 Pa. 215; McGovern v. Ry. Co., 235 U.S. 389; Erie Ry. Co. v. Purucker, 244 U.S. 320; Engel v. Ry., 111 Neb. 21; Anderson v. Ry., 95 Neb. 358; Louisville & N. Ry. v. Wilson, 205 Ky. 533; Director General of Rys. v. Templin, 268 F. 483.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE WALLING:

This action, brought under the Federal Employers' Liability Act of April 22, 1908, 35 U.S. Stat. 65, c. 149, on account of the death of Joseph Dawson, resulted in a verdict and judgment for plaintiff and defendant has appealed.

While the case falls within the act, his work being in furtherance of interstate commerce, the recovery cannot be sustained for lack of proof of defendant's negligence. Dawson was working as one of a gang of track repairers on defendant's double track railway at the Cheltenham section, a short distance from Philadelphia, and had been so employed for months. On the forenoon of September 29, 1925, the men were working on the tracks some seven hundred feet east of the Cottman Street bridge when Dawson went for a bucket of water. In so doing, he walked on the westbound track, going with the current of traffic and, shortly after passing under the bridge above mentioned, was killed by a rapidly moving westbound express train. The situation was more hazardous as at that time a freight train was passing eastward on the opposite track. Numerous track hands were employed between New York and Philadelphia and, when seen upon the track, it was defendant's custom to warn them of the approach of trains by ringing the bell and, if necessary, by sounding the whistle. The bell on the engine here in question was ringing automatically; but the admitted failure to give the additional warning by sounding the whistle is urged for plaintiff as evidence of negligence. This is the crucial point in the case. It was a clear day and yet the engineer testified that, although keeping a sharp lookout ahead, he did not see Dawson. This was explained by the fact that going west in the vicinity of the Cottman Street bridge the tracks curve sharply to the left (south) so that the engineer's view was obstructed by the convex surface of the passing freight train. The engine was of the large modern type and extended a considerable distance forward of the engineer's place on the right side, which also prevented a clear view of the track while rounding the curve to the left. There is no complaint here of a faulty construction of tracks or engine and under the existing conditions there is nothing to justify a finding that the testimony of the engineer is false when he says he was looking ahead and failed to see the man on the track. There is even less occasion to criticize the fireman who had...