Northern Central Railway Co. v. Husson

• Decision Date: 02 October 1882
• Parties: Northern Central Railway Company <I>versus</I> Husson.
• Court: Pennsylvania Supreme Court

Page 1

101 Pa. 1

Northern Central Railway Company versus Husson.

Supreme Court of Pennsylvania.

May 18 and 19, 1882.

October 2, 1882.

May 18th and 19th 1882.

Before MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ. SHARSWOOD, C. J., absent

ERROR to the Court of Common Pleas of York county: of January Term 1882, No. 398.

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Hay and McVeagh (Cochran with them), for the plaintiff in error.—There was no evidence of negligence by the defendant, which caused the injury, and the court should have withdrawn the case from the jury and directed a verdict for the defendant: Day v. Toledo, C. S. & D. R. R., 42 Mich. 523; S. C. 2 Amer. & Eng. R. W. Cas. 126; Atchison, Topeka & Santa Fe R. R. v. Plunkett, 2 Amer. & Eng. R. W. Cas. 128; Phil. & Read. R. R. Co. v. Schertle, 1 Out. 450; Mansfield Coal & Coke Co. v. McEnery, 8 W. N. C. 81; Frazier v. Penna. R. R. Co., 2 Wr. 104; Phila. & R. R. R. Co. v. Heil, 5 W. N. C. 91; Same v. Yerger, 23 P. F. S. 121; Clark v. P. & R. R. R., 5 W. N. C. 119; Pa. R. R. v. Fries, 5 W. N. C. 545; Lehigh Val. R. R. v. Jones, 5 Norris 432; Mich. Cent. R. R. v. Smithson, 1 Amer. & Eng. R. W. Cas. 101.

H. L. Fisher, for the defendant in error.—The only cases where the court may nonsuit or direct a verdict for defendant, are those where the precise measure of duty is defined, and there is no evidence of failure to comply with such duty. Where, however, the measure of duty varies, where a higher degree of care is demanded under some circumstances than under others, where both the duty and the extent of performance are to be ascertained as facts, a jury alone can determine what is negligence and whether it has been proved: McCully v. Clarke, 4 Wr. 406. In the present case neither the standard of duty by the employer in loading cars with projecting bridge irons, nor the standard of care by the employé in coupling such cars, was defined or determinate, but each depended upon circumstances, and it would therefore have been error for the court to hold, as matter of law, that there was or was not either negligence or contributory negligence per se: Penna. Canal Co. v. Bentley, 16 P. F. S. 33; Penna. R. R. Co. v. Barnett, 9 P. F. S. 259; Johnson v. Bruner, 11 P. F. S. 58; Catawissa R. R. Co. v. Armstrong, 2 P. F. S. 282; Penna. R. R. Co. v. Righter, 2 Amer. & Eng. R. W. Cas. 225.

Mr. Justice GREEN delivered the opinion of the court, October 2d 1882.

The chief difficulty we encounter in this case is in discovering any evidence of negligence on the part of the defendant, such as would subject it to liability for the injury in question. The deceased, John Husson, was an employé of the defendant, whose duty it was, amongst other things, to couple cars, at the time and place of the accident. While in the performance of this duty, his head was caught between the projecting ends of certain bridge irons, loaded upon the cars he was coupling, in consequence of which he was killed. It is not claimed that there was any defect in the road bed, or in the cars, or in the coupling apparatus. The injury was not the result of any defect in any of the appliances furnished by the defendant. On the contrary, it was the result of the manner in which the act of coupling was performed. The same cars with the same loading upon them, were, immediately after the accident, successfully coupled by another person, in perfect safety. The only difference in the two acts of coupling was in the manner in which they were respectively done. Husson's head was raised high enough to be caught by material loaded on top of the cars, and Gaul, who made the second coupling, kept his head below the material and was not caught. Husson's head was above the level of the floor of the car, or it would not have been caught. The act of coupling was necessarily to be performed below the bottom of the cars, as the apparatus by which it was to be done was there located. It was testified by a number of witnesses, and contradicted by none, that in order to make the coupling properly and with safety, the head of the coupler must be below the car. Common prudence would seem to indicate the necessity of such a precaution, and the mere fact and character of the accident would appear to demonstrate that it was due to a want of ordinary care by the deceased. But, however that may be, we are unable to discover anywhere in the testimony, the slightest evidence of negligence on the part of the defendant. The case was left to the jury, by the learned judge of the court below, on the question of extraordinary risk to the deceased on the part of the defendant, and ordinary care by the deceased. Thus in the charge the court said: "If you believe that the deceased was, under the circumstances of this case, subjected to such extraordinary risk which the company could have avoided, the company is liable. But if you believe it was an ordinary risk, and that the deceased did not take ordinary care, in other words, was careless, in the performance of the act which resulted in his death, the company is not liable." We cannot agree that the risk to which an employer subjects his employee suffices to impose liability upon the former, as being extraordinary in character, merely because the injury in a particular case might possibly have been prevented by some different device. Almost all accidents could be avoided if the especial manner of their occurrence could be foreseen. Nor can we assent to the idea that it requires a combination of ordinary risk on the part of the employer and want of ordinary care on the part of the employee to relieve the employer from liability. If the risk is an ordinary one the employer is not liable even if the employee did use ordinary care. In all such cases the risk of injury is one of the hazards which the employee assumes when he engages in the service to which it is incident. This has always been the law.

There can be no doubt that the coupling of railway cars is a hazardous business, and requires the exercise of a commensurate degree of care on the part of those who engage in it. But it by no means follows that because of an accident to such an employee while performing his duty the employer is liable simply for the reason that the particular accident might have been prevented by some special device or precaution not in common use.

So far as this branch of the case is concerned, and without reference to the question of ordinary care by the deceased, the case resolves itself into the inquiry whether the risk which occasioned the injury was of an extraordinary and unusual character; in other words, a risk not ordinarily incident to the employment in which the deceased was engaged.

This is a question of fact, to be illustrated by testimony. Had there been testimony in the case tending to establish the proposition that the risk was of such a character, the submission of it, and of the question, to the jury, could not have been complained of. We have read the whole of the testimony with great care and are constrained to say that we cannot find any evidence, which proves, or tends to prove, that the risk in question was of an unusual or extraordinary character. But one of the plaintiff's witnesses was interrogated upon this subject — Wm. Henningen — and he testified that it was a matter of frequent occurrence to have cars loaded with material projecting beyond the bumpers, on the defendant's road, and at the yard where...