McGregor v. Pennsylvania R. Co.

• Decision Date: 22 June 1905
• Docket Number: 107
• Citation: 61 A. 1017,212 Pa. 482
• Parties: McGregor v. Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

61 A. 1017

212 Pa. 482

McGregor v. Pennsylvania Railroad Company, Appellant

No. 107

Supreme Court of Pennsylvania

June 22, 1905

Argued April 20, 1905

Appeal, No. 107, Jan. T., 1905, by defendant, from judgment of C.P. Huntingdon Co., May T., 1900, No. 1, on verdict for plaintiff in case of Laura McGregor v. Pennsylvania Railroad Company. Reversed.

Trespass to recover damages for death of plaintiff's husband. Before BELL, P.J., specially presiding.

At the trial it appeared that on November 8, 1899, plaintiff's husband, H.R. McGregor, a freight brakeman, was killed in the defendant's yards in the city of Altoona. The accident was the result of a collision between a freight car and the bumper of an engine. The deceased was on the freight car at the time. It was claimed that the defendant was negligent in not providing an automatic system of signals. Other facts appear by the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $4,000. Defendant appealed.

Error assigned amongst others was in entering judgment on the verdict.

Judgment reversed.

John D Dorris, for appellant. -- The legal test of reasonable safety in machinery or methods is ordinary use, and a jury cannot be permitted to set up any other: Leonard v. Herrmann, 195 Pa. 222; Peterson v. Penna. R.R. Co., 195 Pa. 494; Higgins v. Fanning & Co., 195 Pa. 599; Lehigh, etc., Coal Co. v. Hayes, 128 Pa. 294; Kennelty v. R.R. Co., 166 Pa. 60.

W. C. Fletcher, with him W. M. Henderson, for appellee. -- Negligence is always for the jury where there are any doubts as to the facts, or as to the inferences to be drawn from them: Whitman v. Pennsylvania Railroad Company, 156 Pa. 175; Smith v. B. & O.R.R. Co., 158 Pa. 82; Bannon v. Lutz, 158 Pa. 166.

That the switching of heavily loaded trains is a dangerous practice is undisputed. The deceased assumed this risk providing his employer exercised such care and caution as the nature of the work required. As a brakeman, he had nothing to do with the system of switches or signals in the yard and he assumed no risk growing out of their defects: Bannon v. Lutz, 158 Pa. 166; Patterson v. Pittsburg, etc., R.R. Company, 76 Pa. 389; Kehler v. Schwenk, 151 Pa. 505; Patterson v. Pittsburg Railroad Company, 76 Pa. 389; Lewis v. Seifert, 116 Pa. 628; Abel v. Del. & Hudson Canal Co., 128 N.Y. 662 (28 N.E. Repr. 663); Davis v. Snyder Twp., 196 Pa. 273; Kay v. R.R. Co., 65 Pa. 269; Tissue v. R.R. Co., 112 Pa. 91; Penna. & N.Y. Canal & R.R. Co. v. Mason, 109 Pa. 296.

The concurrence of an ordinary event which should have been foreseen by the defendant will not relieve it: Wood v. Penna. R.R. Co., 177 Pa. 306; Coppins v. R.R. Co., 122 N.Y. 557 (25 N.E. Repr. 915); Grand Trunk Ry. Co. v. Cummings, 106 U.S. 700 (1 S.Ct. Repr. 493).

Before DEAN, BROWN, MESTREZAT, POTTER and ELKIN, JJ.

OPINION

MR. JUSTICE ELKIN:

No matter how distressing the accident, or unfortunate the circumstances surrounding the death of the decedent, who was the husband of the plaintiff and the employee of the appellant, there can be no recovery of damages unless the death was the result of negligence on the part of the defendant company. The learned trial judge entertained some doubt about the liability of the defendant in this action, which is evidenced by the reservation of the following questions, with the right to enter judgment non obstante veredicto: "First, is there any evidence of negligence on the part of the defendant company which would warrant the judgment in favor of the plaintiff. Second, under the undisputed evidence, was not the negligence of either Mr. Allaway, the switchman, or Mr. Chase, the engineer, who were fellow servants of the decedent, proximately the cause of the accident. Third, was not the cause of the accident one of the risks the decedent assumed when he engaged as brakeman dropping down trains through the yard of the Pennsylvania Railroad in Altoona."

In passing upon the reserved questions, the trial judge, among other things, said: "But even assuming that said engineer and said switchman, who were fellow employees of said decedent brakeman, were guilty of negligence, was it not a question for the jury as to whether there was not negligence on the part of the railroad company."

After a careful consideration of the case, and an exhaustive examination of the testimony, we are of opinion that there was no evidence of negligence by the defendant and that the...