McNulty v. Pennsylvania R. Co.

• Decision Date: 11 October 1897
• Docket Number: 71
• Citation: 38 A. 524,182 Pa. 479
• Parties: Kate McNulty v. The Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Supreme Court

38 A. 524

182 Pa. 479

Kate McNulty v. The Pennsylvania Railroad Company, Appellant

No. 71

Supreme Court of Pennsylvania

October 11, 1897

Argued March 21, 1897

Appeal, No. 71, Jan. T., 1897, by defendant, from judgment of C.P. No. 3, Phila. Co., Dec. T., 1894, No. 544, on verdict for plaintiff. Affirmed.

Trespass for death of plaintiff's husband. Before GORDON, J.

The facts appear by the opinion of the Supreme Court.

Verdict and judgment for plaintiff for $6,000. Defendant appealed.

Errors assigned were (1-3) instructions, as recited in the opinion quoting them.

Judgment affirmed.

David W. Sellers, for appellant. -- There must be an intention to accept a person as a passenger. It is the actual truth that decedent rode in the car only as an employee: Tunney v. Midland Ry. Co., L.R. 1 Common Pleas, 291. To impose upon the defendant the obligation as of a carrier to a passenger is to make a contract never agreed to: Bricker v. R.R., 132 Pa. 3.

The case is within act of April 4, 1868: Ryan v. Cumberland Valley R.R., 23 Pa. 384: Ry. Accident Law, Patterson, 216.

The employee in O'Donnell v. R.R., 50 Pa. 490, was not in the same common employment as the engineer. This last case also arose before the act of 1868.

If McNulty was not in the car as an employee then he was a trespasser: Penna. R. Co. v. Mooney, 126 Pa. 250.

He was on the car only by reason of his contract of service. He was therefore on the road "while lawfully engaged:" Ricard v. North Penna. R.R., 89 Pa. 195; Balti. & Ohio R.R. v. Colvin, 118 Pa. 230.

P. F. Rothermel, Jr., for appellee. -- The case at bar falls directly within the decision of O'Donnell v. Allegheny Val. R.R., 59 Pa. 239.

This case does not fall within the provisions of the act of of April 4, 1868.

The case of R.R. v. Mooney, 126 Pa. 250, cited by counsel for defendant, was the case of a laborer who essayed to cross a public crossing without stopping, looking or listening, and hence has no application.

The cases of Ricard v. North Penna. R.R., 89 Pa. 195, and Balti. & Ohio R.R. v. Colvin, 118 Pa. 230, cited by counsel for defense, were cases where the persons injured were actually employed in their respective occupations when the accident occurred, and hence have no application.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM and FELL, JJ.

OPINION

MR. CHIEF JUSTICE STERRETT:

The first and third specifications of error are intended to present what may be regarded as the controlling question in this case: Whether, upon the undisputed facts, the relation of plaintiff's husband to the defendant company at the time he was killed, in the collision that occurred on October 28, 1894, was that of a passenger being transported in one of its cars, or that of an employee then in the service of the company? These specifications are as follows:

1st. In refusing to charge, as requested in defendant's first point, "That McNulty was carried by defendant in the performance of a contract of employment and service, and was in law not a passenger but an employee; and as he was injured by a collision due to the negligence of the engineer, the verdict must be for the defendant."

2d. "In charging the jury that the decedent was a passenger." This specification was doubtless intended to embrace that part of the charge in which the learned trial judge refers to the relation of the deceased to the defendant company at the time of the collision. If so, it offends against Rule XXIII which provides that "the part of the charge . . . referred to must be quoted totidem verbis in the specification." Turning to the charge sent up with the record, we find that, as to the contractual relation existing between the deceased and the defendant and the circumstances attending the collision in which he lost his life, etc., the learned judge said:

"It appears that the husband was an employee of the railroad company. He was employed to work on a bridge at Tacony, in this county, under a contract of employment by which he was to receive $1.20 a day, and the company also contracted to transport him from his home to the place where his work was to be performed, and from that place back to his home at night when his work was over. The dead man lived at Bristol in the adjoining county, and upon the Sunday when he met his death he had finished his work about fifteen or twenty minutes after six o'clock, and he with other workmen, employed upon the bridge at Tacony, entered a passenger car of the Pennsylvania Railroad Company, and the car then proceeded towards Bristol. It stopped at a station called Croyden, situated between Tacony and Bristol, and while there at rest, or when about to come to rest, a freight train of the Pennsylvania Railroad Company, upon the same track, crashed into the rear end of the car and the plaintiff's husband was killed. It was argued to the court that under a statute of our state and under the general law a railroad company was not liable in damages in such a case as this, because McNulty was an employee of the company at the time of the accident, and that the company is not liable to the employee who is injured through the negligence of another employee. In passing upon the motion of a nonsuit I stated, and I now charge you that under the contract of hiring in this case, the services, the work, the employment of McNulty ceased when he quit work at Tacony, and that while he was being transported to his home over the tracks of the railroad company he was not an employee then in its service and, therefore, the injury which he suffered and which resulted in his death did not come to him while he was in the employ of the company. . . . He was not in the...