McMullen v. Carnegie Bros. & Co., Ltd.

• Decision Date: 14 November 1893
• Docket Number: 280
• Citation: 27 A. 1043,158 Pa. 518
• Parties: McMullen, Appellant, v. Carnegie Brothers & Co., Ltd
• Court: Pennsylvania Supreme Court

27 A. 1043

158 Pa. 518

McMullen, Appellant, v. Carnegie Brothers & Co., Ltd

No. 280

Supreme Court of Pennsylvania

November 14, 1893

Argued November 8, 1893

Appeal, No. 280, Oct. T., 1893, by plaintiff, Celia McMullen from judgment of C.P. No. 3, Allegheny Co., Aug. T., 1893 No. 17, entering nonsuit in favor of defendant, Carnegie Brothers & Co., Ltd.

Trespass for death of plaintiff's husband.

At the trial, before McCLUNG, J., it appeared that plaintiff's husband was a brakeman in the employ of defendant company. Defendant owned and operated an extensive plant at Braddock for the manufacture of steel rails and other products from iron. It owned a number of miles of railroad tracks and switches, connecting its mills with neighboring railroads. It also owned and operated a large number of locomotives used in receiving and delivering freight cars. The company employed a large number of men, in the capacity of engineers, firemen brakemen and yard masters, in receiving and delivering cars. At the time of his death, deceased was employed as head brakeman. On the night of Nov. 11, 1891, at about nine o'clock, deceased was employed in making up an out-going train, and went upon a car owned by the Pennsylvania Railroad Company to set the rear brake. While he was so engaged, the brake wheel which he was required to use in setting the brake, being unfastened, flew off, and he fell to the ground and was run over. It was subsequently discovered that the nut and thread upon which the wheel was screwed was broken off even with the top of the shoulder where the wheel rested upon the staff rod. The condition of the brake indicated that it had been out of repair for several weeks before the accident. It appeared that the car had been upon defendant's tracks for twenty-four hours before the accident occurred.

The court entered a compulsory nonsuit and subsequently refused to take it off, in the following opinion by McCLUNG, J:

"There is no direct evidence in this case of actual notice to the defendants of the defective condition of the brake staff which probably caused the death of the plaintiff's husband. Nor does it appear that the car was in their possession for such length of time that a jury could be permitted to find that in the ordinary course of affairs they should have noticed it.

"Plaintiff's case then depends upon the existence of a duty on the part of defendants to ascertain by inspection that cars delivered to them by the railroad company for the purpose of being unloaded, or loaded, or both, are in good and safe condition before permitting its employees to handle them for the purposes for which they are so delivered.

"The cars used by a railroad company for the purpose of transporting freight are appliances, as to the condition of which the company owes a duty to its employees working upon them which cannot be filled without proper inspection. This, doubtless, applies as to cars borrowed or hired by the railroad company from another company. It does not, however, apply to companies or persons on whose sidings loaded cars are delivered for the purpose of permitting the owner of the siding to unload the freight.

"It follows that the nonsuit it this case was properly granted and the motion to take it off must be refused."

Error assigned was refusal to take off nonsuit.

Judgment affirmed.

M. A. Woodward, John B. Chapman with him, for appellant. There was proof of negligence on part of defendant, bringing this case clearly within the line of the following authorities: Phila. & R.R.R. v. Huber, 128 Pa. 63; Ellis v. N.Y., L.E. & W.R.R., 95 N.Y. 546; Plank v. N.Y.C. & H.R.R.R., 60 N.Y. 607; Muldowney v. Ill. C.R.R., 36 Ia. 462; Fay v. M. & St. L. Ry., 15 N.W. 241; G.T. Ry. v. Cummings, 27 Albany L.J. 294; Kain v. Smith, 80 N.Y. 458; Painton v. N.C.R.R., 83 N.Y. 7; Shanny v. Androscoggin Mills, 66 Maine, 420; Gibson v. R.R., 46 Mo. 163; Gottlieb v. N.Y., L.E. & W.R.R., 100 N.Y. 462; Connolly v. Poillion, 41 Barb. 366; Noyes v. Smith, 28 Vt. 59; Ford v. R.R., 110 Mass. 240; Gibson v. P.R.R., 2 Am. Rep. 500; R.R. v. Gildersleeve, 33 Mich. 133; R.R. v. Ingraham, 77 Ill. 309; Ford v. R.R., 14 Am. Rep. 598; Hough v. R.R., 21 Albany L.J. 129; Fuller v. Jewett, 80 N.Y. 52; Kirkpatrick v. N.Y.C. & H.R.R.R., 79 N.Y. 240; Ryan v. Fowler, 24 N.Y. 414; Jetter v. N.Y. & H.R.R., 2 Abb. Ct. App. Dec. 458; O'Neil v. St. L.R.R., 9 F. 337; Gutridge v. Mo. Pac. R.R., 94 Mo. 474; P.R.R. v. Roy, 102 U.S. 457.

James H. Reed, G. D. Packer, ...