Gaussman v. Philadelphia & R. R. Co.

• Decision Date: 20 February 1914
• Docket Number: 39-1913
• Citation: 55 Pa.Super. 542
• Parties: Gaussman v. Philadelphia & Reading Railway Company, Appellant
• Court: Pennsylvania Superior Court

55 Pa.Super. 542

Gaussman v. Philadelphia & Reading Railway Company, Appellant

No. 39-1913

Superior Court of Pennsylvania

February 20, 1914

Argued October 9, 1913

Appeal by defendant, from judgment of C.P. No. 5, Phila. Co.-1909 on verdict for plaintiff in case of Frederick C. Gaussman v Philadelphia & Reading Railway Company.

Trespass to recover damages for personal injuries.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 324. Plaintiff appealed.

Error assigned was in refusing binding instructions for defendant.

Affirmed.

Wm Clarke Mason, for appellant. -- The burden is upon the plaintiff to show that the injury was caused by a servant of the defendant while acting within the scope of his employment: Guille v. Campbell, 200 Pa. 119.

Even though there had been evidence disclosing the fact that the servant had been acting within the scope of his employment in the use of the pistol, the injuries resulted from an " unavoidable accident," for which there can be no recovery: Sutton v. Bonnett, 114 Ind. 243; Hunter v. Ry. & Bridge Co., 85 F. 379; Wall v. Lit, 195 Pa. 375; White v. Roydhouse, 211 Pa. 13.

Robert S. Shaw, with him Francis C. Menamin, for appellee. -- A railroad company is responsible for injuries due to negligence of its employees while acting within the course of their employment: Drew v. Peer, 93 Pa. 234; Philadelphia Traction Company v. Orbann, 119 Pa. 37; Lake Shore & M. S. Ry. Co. v. Rosenzweig, 113 Pa. 519; McFarlan v. R. R. Co., 199 Pa. 408.

The agent was acting within the scope of his authority as he, in removing the revolver from the desk, was taking a precautionary measure to protect the company's property: Texas Midland R. R. Co. v. Dean, 82 S.W. 524; Gulf, etc., Ry. Co. v. Luther, 90 S.W. 44.

It was in the province of the jury to decide whether or not the servant was acting within the scope of his employment when the plaintiff was injured: Schimpf v. Harris, 185 Pa. 46; Hestonville, M. & F. Pass. Ry. Co. v. Grey, 1 Walk. 513; Quinn v. Shamokin & M. C. Elec. Ry. Co., 7 Pa.Super. 19; Madara v. Shamokin & M. C. Elec. Ry. Co., 192 Pa. 542; Pennsylvania R. R. Co. v. Spicker, 105 Pa. 142.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.

OPINION

HEAD, J.

The plaintiff, intending to take passage on one of the defendant's trains, came into its station at Wayne Junction for the purpose of procuring a ticket. The agent of the company was just about going on duty for the night. His work was performed in a small office or compartment separated from the main room by partitions composed, at least in part, of opaque glass. It appears a loaded revolver was kept by him for the protection of himself and of the company's property in his custody. As part of his preparation for the night's work, he removed the loaded revolver from the drawer of a desk with the intention of placing it either on the top of the desk or on a shelf where it would be readily at hand if needed. In removing the revolver from the drawer he struck the trigger against the edge of the drawer and this resulted in an explosion of the ball cartridge with which it was loaded. The ball passed through the glass and lodged in the shoulder of the plaintiff and he brought this action against the company to recover damages for the injury thus caused.

As the case is presented to us, we may best consider it in two aspects: --

(1) Did the evidence warrant a finding by the jury that the injury of the plaintiff was caused by the negligence of the person handling the loaded revolver; or could the learned trial court have properly declared, as matter of law, that no evidence of negligence was presented and that the injury must be classed with those unavoidable accidents for which the law furnishes no remedy?

Certainly the mere possession of a loaded pistol by a person who served his employer during the night, and who by virtue of his employment was the custodian of money and other valuable property of his employer, could not be considered a negligent act. How much care should he have exercised in handling a dangerous loaded weapon? It is to be observed the pistol was not discharged by any unforeseen or theretofore unknown quality or characteristic of the explosive powder used. The explosion followed the direct application of force at the point where such force is usually mechanically applied in order to discharge the weapon. This force was not applied by any extraneous cause over which the individual handling the revolver had no control. It was applied by him. Truly, he did not intend so to apply it. But the exercise of a little more care in handling the weapon would have certainly prevented the explosion, and it cannot be said therefore that the accident was an unavoidable one.

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