New York, Lake Erie & Western R.R. Co. v. Bell

• Decision Date: 10 May 1886
• Docket Number: 208
• Citation: 4 A. 50,112 Pa. 400
• Parties: The New York, Lake Erie & Western R.R. Co. v. Bell
• Court: Pennsylvania Supreme Court

4 A. 50

112 Pa. 400

The New York, Lake Erie & Western R.R. Co. v. Bell

No. 208

Supreme Court of Pennsylvania

May 10, 1886

Argued March 18, 1886

ERROR to Court of Common Pleas, of Susquehanna county: Of January Term, No. 208.

Trespass on the case by Albert Bell against the New York, Lake Erie and Western Railroad Company to recover damages for injuries sustained by being struck by an obstruction, a gas pipe carelessly and negligently carried over a railroad track by the defendant, over which track it was the duty of the plaintiff to pass in the performance of his duty. Plea, Not guilty.

The following are the facts as they appeared on the trial before McCOLLUM, P.J.:

The New York, Lake Erie and Western Railroad Company are a corporation organized under the laws of the state of New York, and are the successors of the Erie Railway Company. Their railroad passes through the county of Susquehanna, and they have at the borough of Susquehanna, large shops for the repair and manufacture of locomotives, cars, switches castings, frogs, and other supplies which are used upon the various divisions of the road. Susquehanna being the terminus between the Susquehanna division on the west, and the Delaware division on the east, large numbers of cars of all descriptions accumulate, and are made up into trains necessitating a large number of parallel tracks in the yard.

The shops of the company are not all under one roof, but the foundry, hammer shop, and paint shop are separate from the main machine shop, as it is called, which is some 700 feet long.

Between the foundry and paint shop, and machine shop, a track is laid for the purpose of bringing in material and supplies to the various shops from the main track, and for carrying out the castings, cars, locomotives, and repaired and manufactured articles upon the main track, for distribution over the road.

There is also a scale upon this track upon which locomotives are run on to be weighed.

All these shops, and the men employed therein, and on this foundry track, were under the general charge of V. Blackburn who is known as the master mechanic, and under him was a general foreman, J. Hawthorne.

The master mechanic has the sole power of employing and discharging men at these shops, but this power he delegated to the general foreman, who frequently exercised it. There were about 800 men employed in and about these shops -- and they worked under the immediate charge of foremen and bosses.

O. D Falkenbury was foreman of the foundry, Mr. Leal of the paint shop. C. O. Vedder was gang foreman of the turning department, and had charge of making rods and links, and of gas and steam pipe and fitting.

M. H. Pope had charge as a boss of a gang of men whose business it was to bring in any cars loaded with materials and supplies for the shops from the main track, take them into the paint shop, foundry, and other shops, and unload them there, and to load any manufactured articles or supplies from the shops into cars for distribution along the road. For this purpose this foundry track was used. It was not used for the general transportation business of the road.

The men in Pope's gang were an engineer and fireman, who were upon a switching engine used only for this purpose: two switchmen, of whom the plaintiff was one; a number of laborers, who performed the work of loading and unloading the cars.

O. D. Falkenbury, who was foreman of the foundry, applied to the master mechanic for leave to have a gas pipe run from the paint shop to the foundry so as to furnish light to inspect the cores of some particular castings made there. It being then winter, and the ground frozen, so that the trench to convey the pipe underground could not conveniently be dug, he was directed to wait until the spring, when the ground would be thawed out. In June he went to Mr. Hawthorne and received permission to have Vedder do it.

Instead of having a trench dug and conveying the pipe under ground, O'Dea, who was one of the gasfitters, ran the pipe across this foundry track, sixteen feet and three inches above the rail. This was done on the 29th of June, 1881, and the same afternoon, about 4 o'clock, before Hawthorne or Blackburn knew that the pipe had been put across over the track instead of under it, the plaintiff, in standing on a car which was being run into the shop, was hit by the pipe across his shoulders. He was not injured, but caught hold of it and tried to pull it down. He then went to Pope and told him of it, and Pope said he would see Hawthorne about it. Plaintiff says he said he would have it taken down. The pipe was of such a height as not to hit a man sitting on the cars or if he stooped about a foot or so.

The plaintiff went to work the next morning after he had been hit by the pipe, and in passing along on this track standing on a box car, with his back to the pipe, he was knocked off the car and sustained severe injuries, for which this suit is brought. He could have seen the other switchman just as well if he had been sitting, as if standing on the car.

The defendant claimed on the trial:

First. That the plaintiff, and all the men employed in and about these shops, being, and engaged in a common employment under the same general foreman and master mechanic, were fellow servants, and that for the negligent acts of any one, the other could not recover.

Second. That plaintiff having knowledge that the pipe was there the night before he was injured, was bound to look out for it the next morning; that a failure to do so was such utter recklessness, that the court was bound to pronounce it contributory negligence.

Third. That the fact that plaintiff told Pope, who was simply his immediate gang boss, of it, even if Pope did say he would have it taken down, was no excuse for such failure to look out for the pipe before passing under it.

The defendant presented, inter alia, the following points:

5. "That the men employed in the shops of the defendant, and the men employed in the shop yard, to take in and out cars loaded with supplies for use in the shops, and to load and unload them, all being under one common foreman, are fellow-servants, and for the negligent acts of any one of them, not communicated to the general foreman, no recovery can be had."

Ans. We decline to affirm this point. It calls upon us to say in substance, as respects the questions here, and the acts under investigation, that Bell, and O'Dea, and Vedder were fellow servants and co-laborers, and that we decline to do. (Fifth assignment of error.)

6. "That the plaintiff having testified that the injury was caused by a gas pipe crossing from the paint shop to the foundry, and having shown by his own evidence that the same was put up by O'Dea, under the directions of Vedder, the foreman of the rod department, such act was the act of a co-employee, and if negligently done, no recovery can be had therefor by the plaintiff."

Ans. This point is refused. (Sixth assignment of error.)

The plaintiff presented, inter alia, the following point:

2. "If the jury believe that the gas pipe was put up just as sworn to by the plaintiff, on the 29th day of June, 1881, by O'Dea, by direction or permission of V. Blackburn, the master mechanic, as testified to by him, then the defendant is responsible for the manner in which it was erected, whether a skillful workman was employed or not. For the defendants, in law, are deemed to be present, though not actually present. And if the gas pipe was so erected as to be unsafe and dangerous, or so as to render the place where the plaintiff worked unsafe and dangerous, then the defendants are, without further notice, guilty of negligence, and if the plaintiff was injured thereby he may recover for those injuries, unless the jury are satisfied from the evidence that the plaintiff was guilty of contributory negligence."

Ans. We affirm this point. (Second assignment of error.)

Verdict for the plaintiff for the sum of $7,000, and thereupon judgment, whereupon the defendant took this writ, assigning for error, inter alia, the answer of the court to the plaintiff's and the defendant's points as above given.

Judgment reversed.

W. H. &amp H. C. Jessup, for plaintiff in error. -- "The question arises, who are fellow-servants in contemplation of law? To constitute such they need not at the time be engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purposes. The rule is the same, although the one injured may be inferior in grade, and is subject to the control and direction of the superior, whose act caused the injury, provided they are both co-operating to effect the same common object. The true reason upon which, I think, this rule rests, is, that each one who enters the service of another, takes on himself all the ordinary risks of the employment in which he engages, and that the negligent acts of his fellow-workmen, in the general course of his employment, are within the ordinary risks: Lehigh Valley Coal Co. v. Jones, 86 Pa. St., 432. Omitting numerous cases which sustain the principle we have stated, we will content ourselves with citing Wilson v. Merry Eng. Law Rep., 1 H. L. Scotch Ca., 326; Hall v. Johnson, 34 L. J. Exch., 222; Morgan v. The Vale of Neath Railway Co., 35 L.J.Q.B., 23; Howells v. Landore Simons Steel Co., 10 Eng. Law Rep. (Q.B.), 62; Albro v. Canal Co., 6 Cush., 75; Gillshannon v. Stony Brook Railroad Co., 10 Id., 228; Gilman v. Eastern Railroad Co., 10 Allen, 233; Russell v. Hudson Railroad Co., 17 N.Y. 134; Boldt v. New York Central Railroad Co., 18 Id., 432; Wright v. Same, 25 Id., 562; Fort v. Railroad, 2 Dillon, 259; Chicago & A....