N. Y. Etc. R. Co. v. Lyons

• Decision Date: 19 March 1888
• Citation: 119 Pa. 324
• Parties: N. Y., L. E. & W. R. CO. v. HENRY LYONS.
• Court: Pennsylvania Supreme Court

119 Pa. 324

N. Y., L. E. & W. R. CO. v. HENRY LYONS.

Supreme Court of Pennsylvania.

Argued February 20, 1888.

Decided March 19, 1888.

Before GORDON, C. J., PAXSON, STERRETT and GREEN, JJ.; TRUNKEY, CLARK and WILLIAMS, JJ., absent.

ERROR TO THE COURT OF COMMON PLEAS OF WAYNE COUNTY.

No. 111 July Term 1887, Sup. Ct.; court below, No. 267 May Term 1885.

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Mr. George G. Waller, for the plaintiff in error:

1. The plaintiff had been in the employ of the company for about two years. By contracting for the performance of hazardous duties, he assumed such risks as were incident to their discharge from causes open and obvious, the dangerous character of which he had full opportunity to ascertain: P. & C. R. Co. v. Sentmeyer, 92 Pa. 281; Brossman v. Railroad Co., 113 Pa. 490. The difficulty with regard to the step was nothing new, but was open and obvious. A man cannot place himself in a position of known danger and recover for an injury resulting therefrom: Jackson v. Railroad Co., 31 Kan. 761; C. & A. R. Co. v. Murphy, 17 Ill. App. 444; Central Trust Co. v. Railway Co., 26 Fed. R. 897.

2. All the witnesses agree that it is dangerous to attempt to board a train moving at from 4 to 6 miles an hour, in the night time. The plaintiff's negligence, therefore, directly contributed to the production of the injury complained of, and he cannot recover therefor: McCorkle v. Railway Co., 61 Ia. 555; Dowell v. Railroad Co., 61 Miss. 519.

We submit that not only was the plaintiff guilty of contributory negligence, but that no negligence was proved against the defendant company.

Mr. George S. Purdy, for the defendant in error:

1. The conductor is the person to administer the rules of the company and apply them to the particular circumstances of the case: O'Donnell v. Railroad Co., 59 Pa. 239; Chicago etc. R. Co. v. Ross, 112 U. S. 383.

2. It is required of the master to furnish and maintain suitable instrumentalities for the duties of his servants: Patterson v. Railroad Co., 76 Pa. 389; such machinery as is reasonably and adequately safe: Penn. & N. Y. Canal & R. Co. v. Mason & Leslie, 109 Pa. 296; Johnson v. Bruner, 61 Pa. 61; O'Donnell v. Railroad Co., 59 Pa. 248: Ardesco Oil Co. v. Gilson 63 Pa. 147; Tissue v. Railroad Co., 112 Pa. 91; Baker v. Railroad Co., 95 Pa. 211; P. W. & B. R. Co. v. Keenan, 103 Pa. 124; and the risks assumed by the servant are those only which occur after due performance by the employer of those duties enjoined.

3. How was the plaintiff to learn his duties except from the general custom of the road and from instructions by his conductors? A brakeman, in the absence of contrary instructions, cannot be charged with negligence in doing that which is in conformity with the usual custom of brakemen: Spong v. Railroad Co., 58 N. Y. 56; Ford v. Railroad Co., 110 Mass. 240.

4. The rule that the continued use of a defective appliance precludes a recovery, is not without exceptions. If the danger is one which a person of ordinary prudence would believe could be entirely avoided by the use of certain additional precautions, the servant, by continuing in his service, would not lose his right to recover for damages suffered by him while using such precautions: Shear. & Redf., Neg., 3d ed., 125. The danger was not such as to threaten immediate injury: Patterson v. Railroad Co., 76 Pa. 393; Tissue v. Railroad Co., 112 Pa. 91; Beach, Cont. Neg., 373.

5. It is not negligence per se for even a passenger to get on or off a slowly moving train, but it is a question for the jury under the particular circumstances: Robson v. Railway Co., 12 Eng. R. 312; S. C. 19 Eng. R. 298; Johnson v. Railroad, 70 Pa. 357.

6. The facts of the case were for the jury. Negligence may be determined by the court, only where the measure of duty is the same under all circumstances: W. C. & P. R. Co. v. McElwee, 67 Pa. 311; McCully v. Clarke, 40 Pa. 406; Phil. Pass. Ry. Co. v. Henrice, 92 Pa. 431. When the standard of duty shifts, the question is for the jury: Kay v. Penn. R. Co., 65 Pa. 269; Sullivan v. P. & R. R. Co., 30 Pa. 234; McKee v. Bidwell, 74 Pa. 218.

OPINION, MR. JUSTICE PAXSON:

The plaintiff brought this action in the court below to recover from the defendant company damages for injuries received while in their employ as a brakeman. The facts, as we gather them from his own testimony, are substantially as follows On the 17th of October, 1883, he was on extra coal train No. 4. About three o'clock in the morning the train stopped for water at Millville, and the plaintiff was sent back to flag another extra train and order it to run slow. This train was following the one of plaintiff and was drawn by engine No. 337. The plaintiff was instructed by his conductor to go back and flag the following train. He says: "It was a cold morning and we were running slow, and we had stopped there to take water, and he was following us and I was put off to flag him. I was put off to go back and let them know what was the matter with our train, and have them look out for us there." The plaintiff fully performed this duty; he flagged the train, told them what was the matter, and then started for his own train. Up to this time no accident had happened. He ran after his own train for a short distance and then turned back. This fully appears from his cross-examination: "Q. You didn't gain on it (the train) as you walked up? A. I ran up around to see how fast they were going. Q. When you found you couldn't reach them, you turned? A. Yes, sir. Q. Did you walk any distance? A. I walked back a ways until the train catched me." When the train came up it was going from four to six miles an hour. He says he signaled it as it approached, but the conductor did not see him and made no answering signal. He then attempted to get on the engine. The night was dark, and he had in his right hand two lanterns. He took hold of the handle of the tender with his left hand and attempted to get his foot on the step. The step was a high one; higher than usual; his foot slipped, got on the rail and was crushed.

The plaintiff bases his charge of negligence against the company wholly upon the unusual height of the step. It was not contended, however, that it was dangerous to get on when the engine was stationary; at such times it was only inconvenient. The plaintiff had been on the engine before, knew of its danger, and made no complaint to the proper authorities; nor did he for such reason decline to remain in the service. The plaintiff further alleged and so testified that at the time he turned back to the train and was injured, his purpose was to flag it the second time. That I may do no injustice I give his precise words: "I flagged them and told them what was the matter, and when they were taking water I saw our train ahead of us, and I started towards our train, and I saw our train was going slow, I came back to flag them again, and tell them, and they were started on then, about four miles an hour, and I didn't get any answer from the engineer that he saw me and when the engine came along I got on and I missed the step and slipped under. The step was too high."

It is clear, notwithstanding the above statement, that when the plaintiff attempted to board the engine he was under no duty to either stop or flag the train. He says himself that he had no orders to do so. He had previously flagged it, delivered his instructions, and performed his whole duty. He turned back and attempted to board this train because it was easier than to overtake his own train. He admits that he had the power to stop the train and preferred taking his chances of getting on safely to remaining until it stopped, or...