Argued
January 5, 1893
Appeal, No. 443, Jan. T., 1892, by defendant, from C.P. No
1, Phila. Co., Sept. T., 1890, No. 126, on verdict for
plaintiff, William H. Owens.
Trespass
for personal injuries.
At the
trial, before BREGY, J., it appeared that plaintiff, an
employee of the city of Philadelphia, was injured by a car of
defendant company running into him while he was engaged in
laying a water pipe under defendant's tracks. The manner
in which the accident happened is described in the opinion of
the Supreme Court.
The
court, under objection, permitted plaintiff to testify as
follows:
"Q.
What notice was given to the company at the time you
commenced work, by yourself or by any of the men, relative to
guarding the hole that was to be dug? What notice was given
to any of the employees of the defendant company relative to
taking care of the hole to be dug? A. I heard one of the men
notify three different drivers on three different cars about
it. Q. To do what? A. To send a man down -- that we were
going to open the street, and to send a man to take charge of
the hole." [7]
"Q.
Did you know of the approach of the car? A. No, sir."
[8]
"Q.
State whether or not you knew of the usage or custom of the
defendant company to notify the men working on the track of
the approach of their cars. A. Yes, sir." [9]
"Q.
State whether or not you relied upon the usage and custom of
the employees of the defendant company to notify the men
working upon the track of the approach of their cars. At the
time of the accident you were standing in the position you
were lowering the pipe into the ditch at the time of the
accident. Yes, sir." [10]
"Q.
State whether or not you knew in any way of the approach of
the car which caused this accident. A. No, sir." [11]
"Q.
State whether or not there was any warning given. I mean a
warning by the employees of the defendant company as to the
approach of this car which caused the accident at any time
before it struck you. A. No, sir." [12]
The
court, under objection, permitted plaintiff to ask his
witness, Joseph S. Weaver, the following questions:
"State
whether or not any notice was given to the defendant company
relative to the protection of the ditch which had been dug on
the day of the accident. A. Yes, sir." [13]
"Q.
State what notice was given, and who gave it, and to whom? A.
Well, the first three cars that came along, we notified them
that we were going to open a hole in the street. I notified
the drivers and conductors to send a man down, that we were
going to open the street." [14]
"Prior
to the car starting again, state what, if anything, was said.
I do not refer to the particular time of the accident, but
during the whole day upon which this accident happened. I
want you to state what was said, if anything, to the men in
the ditch before the car was started over. A. Well, they
would holler out, 'Low bridge!' or 'Heads
down!' or something like that. That is the way they
always do when you are working in a hole." [15]
"Q.
State, in lowering a pipe twelve or thirteen feet long, and
weighing about three hundred and seventy-five pounds, with a
man holding the bell end of the pipe, how it is necessary to
lower that pipe into the ditch? A. In order to save the gas
pipe we had to lower one end at a time. One man had hold of
the bell end of the pipe. The bead end is lowered down, and
then the pipe is shifted along the gas pipe." [16]
"Q.
State whether or not the plaintiff holding the bell end in
the position he was, whether that was a proper or an improper
construction? A. That was proper." [17]
"Q.
State in what position it was necessary for the plaintiff to
stand when holding the bell end of the pipe whilst the pipe
was being lowered into the ditch? A. He would have to stand a
straddle of the south track and hold that end until we
lowered the bead end in. He held it, and after we lowered the
other end it would go to its extent to reach the
ground." [18]
"Q.
State whether or not the pipe which was to be lowered into
the ditch was or was not in a proper position for lowering?
A. Yes, sir." [19]
The
court charged in part as follows:
"If
you find for the plaintiff he is entitled to recover such an
amount as will compensate him for his pain and suffering, for
any amount of money that he has expended by reason of the
injury, for any loss of wages that he has been deprived of or
been unable to earn up to the present time by reason of the
accident, and, if you believe it is a permanent injury, for
loss of earning power for the balance of the time that the
injury will prevent his working. But while you are to assess
and give him what he has expended by reason of his illness
if a man has it in his power to show you how much he has
expended, for instance, as in this case for doctor's
services, and fails to do it, you have no right to guess the
amount. If any plaintiff chooses to go to you without showing
what his doctor's bill is, you have no right to guess it
he having power to show you what his expenses were.
"If
you believe the defendant's contention that this man was
not struck by the car at all, or slipped and fell into the
ditch, he is not entitled to recover, and your verdict should
be for the defendant. The defendant called witnesses to prove
that when the car started there was nobody on the track; that
this man, as the car was started and approaching the ditch,
attempted to put the pipe in, and his foot slipped, he fell
against the side of the car, and was pushed into the ditch.
If you believe that is so, he is not entitled to recover, and
your verdict should be for the defendant.
"Further,
if he saw that car approach, and deliberately took the risk,
knowing it was coming, and was struck by the car, he is not
entitled to recover, for he was guilty of contributory
negligence.
"[Act
fairly to both sides; do what you believe from the evidence
is right and just under the law, as I have given it to you.
Give this man, if he is entitled to compensation, all that
you believe will compensate him for the injury, if he is
entitled to recover; but if the fault was not theirs, if the
fault was his, or if it was an accident for which both sides
were to blame, or it was an accident for which he alone was
to blame, or neither side was to blame, then the verdict
should be for them.]
"With
a sole and earnest desire to do what is right to do in this
case, retire for consideration and deliberation on the
subject. Because this man is a poor man, he is entitled to no
more consideration than anybody else. A man is entitled to
the same consideration whether high, low, rich, or poor. Be
just to him, be just to the railroad company. Because the
defendant is a railroad company is no reason why, because of
that, your verdict should be in favor of the plaintiff.
Remember that by your verdict you are to do justice in this
case, and render justice without fear, favor, or
partiality."
Defendant's
points were as follows:
"1.
There is no evidence in this case of negligence on the part
of the defendant." Refused. [1]
"2.
There is evidence in this case of contributory negligence on
the part of the plaintiff." Refused. [2]
3.
Request for binding instructions. Refused. [3]
Plaintiff's
points were as follows:
"1.
That if the jury believe from the evidence that the plaintiff
was necessarily working on the railway track of the defendant
company, and was engaged in lowering a water-pipe into the
ditch, and was unaware of the approach of defendant's
car, and that the employees of the defendant company, without
giving any warning or notice to the plaintiff, started the
said car and ran same against the plaintiff while he was thus
at work, whereby he was thrown into the ditch and injured,
the jury may find that the defendant company was negligent,
and if they do so find then their verdict must be for the
plaintiff." Affirmed. [4]
"2.
That if the jury believe, from the evidence, that the work
upon which the plaintiff was engaged required the waterpipe
to be in the position that it was, and the plaintiff to stand
upon the railway track of the defendant company at the point
that he did and concentrate his attention upon his work, and
that the car of the defendant company, after having come to a
stop, was started by the employees of the defendant, and was
run along the track, without any signal of its approach,
until it struck and threw the plaintiff into the ditch,
whereby he was injured, and that the plaintiff knew and
relied upon the usage of the employees of the defendant
company to call out and give warning when any of the cars
approached the men working upon the railway track, the jury
may find that the defendant company was negligent, and, if
they do so find, then their verdict must be for the
plaintiff." Affirmed. [5]
Verdict
for plaintiff for $12,000. On filing remittitur by plaintiff
judgment was entered for $7,000. Defendant appealed.
Errors
assigned were, (1-6) instructions; (7-19) rulings on
evidence, quoting instructions and evidence, but not bills of
exceptions.
Judgment affirmed.
Mayer
Sulzberger, George P. Rich with him, for appellant, cited:
Thomas v. Ry., 132 Pa. 504; Ehrisman v.
Ry., 150 Pa. 180; Wheelahan v. Traction Co.,
150 Pa. 187; Buzby v. Traction Co., 126 Pa. 559;
Patton v. Traction Co., 132 Pa. 76; Carson v.
Ry., 147 Pa. 219]; Warner v. Ry., 141 Pa. 615;
P. & R.R.R. v. Adams, 89 Pa. 31; Fox v. Borkey, 126
Pa. 164.
Richard
C. McMurtrie, Samual Evans Maires with him, for appellee
cited: P. & R.R.R. v. Adams, 89 Pa. 31; Lake
Shore & Michigan Southern R.R. Co. v. Frantz, 127 Pa.
297; Reeves v. R.R., 30 Pa. 454; Heaven v.
Pender, 11 Q.B. Div. 503; Dublin v. Slattery, 3...
