O'Donnell v. Allegheny Valley Railroad Co.

• Decision Date: 04 January 1869
• Citation: 59 Pa. 239
• Court: Pennsylvania Supreme Court
• Parties: O'Donnell <I>versus</I> The Allegheny Valley Railroad Company.

Page 239

59 Pa. 239

O'Donnell versus The Allegheny Valley Railroad Company.

Supreme Court of Pennsylvania.

October 26, 1868.

January 4, 1869.

October 26th 1868.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Armstrong county: No. 94, to October and November Term 1867.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

D. Barclay (with whom was J. A. Fulton), for plaintiff in error, cited McAuliff v. Eighth Av. Railroad, Pitts. L. J., Dec. 18th 1865, p. 277; Carroll v. N. York and N. H. Railroad, 1 Duer 571; Lack. and B. Railroad v. Chenewith, 2 P. F. Smith 382; Penna. Railroad v. Ogier, 11 Casey 60; Myers v. Snyder, Bright. Rep. 489; O'Donnell v. Allegheny V. Railroad, 14 Wright 490; Alden v. N. Y. C. Railroad, 3 Am. Law Reg. N. S. 498.

Golden and Neale, for defendants in error, cited Penna. Railroad v. Zebe, 9 Casey 318; Sullivan v. Ph. and Read. Railroad, 6 Casey 234; Penna. Railroad v. Aspell, 11 Harris 149; Frazier v. Penna. Railroad, 2 Wright 110; Penna. Railroad v. Henderson, 7 Id. 449; Lack. and B. Railroad v. Chenewith, supra.

The opinion of the court was delivered, January 4th 1869, by AGNEW, J.

On the former writ of error in this case judgment was reversed because the testimony of Mr. Liston had been rejected, bearing on the question whether the plaintiff was a passenger entitled to a safe transit, or a mere servant running the risk of the negligence of his fellow servants. The testimony of Mr. Liston on the second trial was more clear and pointed upon this question than it had been on the first. The substance of it is this: He had the supervision of the carpenter work on the road from Kittanning to Pittsburg, and was authorized to employ hands. He specially employed the plaintiff to do carpenter work upon the bridge over the Kiskiminetas, about fifteen miles below Kittanning. The plaintiff and other hands lived in and near Kittanning, and it was an accommodation to the company to have them to work at the bridge. Liston agreed with the plaintiff as a part of his contract of hiring that he should travel on the passenger train down and up free of charge, and in consequence of this hired him at a less price per day than if the plaintiff had paid his fare, and if he had not so agreed he could not have been employed at the wages he was paid. The work of the plaintiff was wholly at the bridge, and he received his pay there. At the time of the accident the plaintiff had finished his day's work, and was ten or twelve miles distant from the bridge on his way home. Under these circumstances the court below instructed the jury that the plaintiff was travelling as a passenger and not in the capacity of a servant. The defendants in error, considering it a fundamental question fatal to the plaintiff's right to recover, asks us to affirm the judgment, although no writ of error was taken by them. We think the company cannot set up this objection upon the present writ of error. But as this case must go back for a retrial for misdirection of the court on another point, it is proper to express our opinion as a guide to the court on the next trial. We think the court left this question fairly to the jury on the testimony of Liston and with proper instructions.

It is now settled in Pennsylvania, as it had been in other states and in England, that when several persons are employed as workmen in the same general service, though in different parts of it, and one of them is injured through the carelessness of another, the employer is not responsible, unless he had employed unfit persons for his service: Ryan v. Cumberland Valley Railroad Co., 11 Harris 384; Caldwell v. Brown, 3 P. F. Smith 453. In the last case our brother Read has brought together most of the decisions. But this case is clearly distinguishable from them all. In Ryan v. Cumberland Valley Railroad Co., the plaintiff was a laborer on a gravel train, whose business caused him to travel upon it in the exercise of his employment. The loading and unloading of gravel necessarily required the hands employed in that work to travel with the train from place to place. He gave nothing out of his wages for his fare and travelled not as a passenger to a place of destination, but went with the train whithersoever it became necessary to get and deposit gravel. His travelling on the cars was like that of a brakesman or a fireman in pursuance of his employment, and not under a contract for carriage.

Gilshannon v. Stony Brook Railroad Co., 10 Cush. 228, resembles this case in the feature that the plaintiff was a laborer at a particular place upon the railroad and was carried to and from his work. But it differs in these marked characteristics: He rode merely for his own convenience and ease, voluntarily and beneficially, on the gravel train under no contract for carriage, and no compensation for his passage directly or indirectly. Dewey, J., likened the case to that of a wood-chopper riding for his own convenience upon his employer's wagon driven by another servant who overturns it by his negligence: Tunney v. The Midland Railway Co., 1 Law Rep. C. P. 291 (1866), differs from this case in the important feature that it was part of the plaintiff's employment as a laborer for specific wages to travel from Birmingham to Derby on a train called the "pick up" train for the purpose of gathering up materials left along the line of road; and he was required to be ready for the train at Birmingham and start thence on his duty and to return there.

The case was put directly on the ground that it was part of his contract to travel thus on the train. He was carried as an employee and not as a passenger, and it was not found that he paid fare for his travel either directly or indirectly.

Farwell v. Boston and Worcester Railroad Co., 4 Metcalf 49, was the case of an engineer on a locomotive injured by the negligence of a switch-tender, both being in the course of their regular employment and in the same general service.

Morgan v. Vale of Neath Railway Co., Law Rep. 1 Q. B. 149 (1865), has no bearing upon the point of this case. It decides the same general principle that servants in the same general business, though dissimilar in the immediate objects of their employments, take the risk of each other's negligence. The plaintiff, a carpenter, standing on a scaffold near a turn-table, was thrown from his stand by the negligence of porters engaged in turning an engine on the table.

These are the only cases which need be particularly noticed. In this case, however, the plaintiff, O'Donnell, travelled not as a part of his employment as a carpenter at the bridge, but as a passenger from and to his home. He was not hired to pursue his business on the train, but was carried in consideration of a reduction in the price of his wages. When his day's work was performed he was no longer in the service of the company, but was free to go or to stay, and when he travelled in effect paid his fare out of his wages: Myers v. Cumberland V. Railroad Co., 5 P. F. Smith, is more directly in point. There as soon as Myers had performed the special act he had undertaken to do, which on the first writ of error was held to place him in a temporary relation of service, and had returned to his stand on the platform, his relation as employee ceased, and it was held he was entitled to the protection of a passenger. We adhere to the doctrine of Ryan v. Railroad Co. and Caldwell v. Brown as the general rule, and as the safe one in governing the relation between the employer and employed. But human life is too precious to force the doctrine beyond its reasonable bounds, and this was declared in effect by the Chief Justice in Catawissa Railroad Co. v. Armstrong, 13 Wright 186. He said: "I am not for extending the doctrine further than our cases have extended it. I am for leaving it there." Referring to the former writ of error he said: "It was before us in the case of O'Donnell v. Allegheny V. Railroad Co., at the last term of the Western District, and in that decision we did not extend the doctrine." Following the same track, it was held in Hunt v. Pennsylvania Railroad Co., 1 Smith 475, that the liability to the hands employed by a contractor was confined to him as their principal, and that he and they were not to be considered as common employees under the same company.

If the facts be as alleged by the plaintiff, his case stands also on the ground that the casualty did not arise from an ordinary peril of the service. Ordinary peril is the rule stated by Shaw, C. J., in Farwell v. Boston & Worcester Railroad Co., 4 Metc. 57. In Caldwell v. Brown, supra, Justice Read quotes the rule as stated by Judge Gray in Gilman v. Eastern Railroad Co., 10 Allen 233, to wit, that the servant assumes all the risks of the master's service which the master cannot control, including those arising from the negligence of fellow-servants, but qualified thus: — "The master indeed is bound to use ordinary care in providing suitable structures, engines, tools and apparatus, and in selecting proper servants, and is liable to other servants in the same employment if they are injured by his own neglect of duty." In the more recent case of Weger v. Pennsyvania Railroad Co., 5 P. F. Smith 465, Justice Read restates the substance of the rule and remarks, "that it seems to be conceded that if there be any fault in the selection of the other servants, or in continuing them in their places after they have proved incompetent perhaps; or in employing unsafe machinery, the master will be answerable for all the injury to his servants in consequence." In the present case the injury arose from the breaking of a rail, and according to the plaintiff's testimony this was caused by its resting upon rotten ties. One of the chief witnesses of the defendants says the ties were the same put in when the road was...