Patterson v. Pittsburg & Connellsville Railroad Co.

• Decision Date: 11 January 1875
• Citation: 76 Pa. 389
• Parties: Patterson <I>versus</I> Pittsburg and Connellsville Railroad Co.
• Court: Pennsylvania Supreme Court

76 Pa. 389

Patterson versus Pittsburg and Connellsville Railroad Co.

Supreme Court of Pennsylvania.

October 5, 1874.

January 11, 1875.

October 5th 1874.

Before AGNEW, C. J., SHARSWOOD, WILLIAMS, MERCUR and GORDON, JJ.

Error to the District Court of Allegheny county: No. 68, to October and November Term 1873 W. S. Miller and R. B. Carnahan, for plaintiff in error.—The plaintiff having called attention of the proper officers to the dangerous condition of the switch, and under a promise to repair it and on a request to him to remain till it was done, having continued in the service, the defendants are liable, although he was one of their servants: Clarke v. Holmes, 7 Hurlstone & Norman 937; Snow v. Housatonic Railroad Co., 8 Allen 441. The defendants were bound to use ordinary care: Caldwell v. Brown, 3 P. F. Smith 456; O'Donnell v. Allegheny Valley Railroad Co., 9 Id. 239; Weger v. Pennsylvania Railroad Co., 5 Id. 465; Frazier v. Pennsylvania Railroad Co., 2 Wright 111.

G. Shiras, Jr., for defendants in error.—Where persons are employed in the same general service and one of them is injured through the carelessness of another, the employer is not responsible: Ryan v. The Cumberland Valley Railroad Co., 11 Harris 384; Frazier v. The Pennsylvania Railroad Co., 2 Wright 110; Caldwell v. Brown, 3 P. F. Smith 453; Gilman v. Eastern Railroad Co., 10 Allen 233.

Mr. Justice GORDON delivered the opinion of the court, January 11th 1875.

The plaintiff made the following offer of evidence, to wit: That he was employed in June or July 1869, as a conductor of freight trains on the Pittsburg & Connellsville Railroad; "that he brought coal-trains down the road with other freight. That the defendants had in their use and occupation a switch, siding or branch road near the Pittsburg depot of said road, on which coal-cars were to be run out in order that the coal might be emptied on a platform, and that it was the duty of the conductor to run out coal-cars which he had brought down with his train, on said switch, siding or branch, that the same might be emptied on said platform. That by reason of the shortness of curve on said road or branch, and the improper construction of the frog, or connection with the main track, it was hazardous and dangerous to run said coal-cars out on said switch or siding, and that the plaintiff had notified the superintendent of the railroad, also the foreman of the road, of the said hazard and danger, and the superintendent and foreman promised to repair the same so as to avoid the hazard and danger, requesting the plaintiff to continue his work, observing proper care, until the defects could be remedied. That neither the superintendent nor any one else took any steps to repair said defects, and while plaintiff was running part of his coal-cars over said switch, with brakesmen on the train, in June or July 1869, using due care, the front car of the train, in consequence of the shortness of the curve, was forced from the track and fell to the ground. That the plaintiff, who was on the second car from the fore end of the train, which was also forced from the track, was, in consequence of the shock to the car in which he was, thrown down from the track a distance of about twenty feet, and very seriously injured."

The defendants' counsel objected to this offer: 1st. "Because the injuries complained of were received by the plaintiff while employed as conductor on defendants' road, and were incident to his employment as such."

2d. "That the plaintiff, being fully aware of the condition of the switch, voluntarily continued to expose himself to the threatening danger, and was thereby guilty of such contributory negligence as will disable him from a recovery." The court sustained the objections and overruled the offer.

We hold this action of the court to be erroneous. It is true the master is not responsible for accidents, occurring to his servant, from the ordinary risks and dangers which are incident to the business in which he is engaged; for in such case, the contract is presumed to be made with reference to such risks. But, on the other hand, where the master voluntarily subjects his servant to dangers, such as, in good faith, he ought to provide against, he is liable for any accident arising therefrom. In the case of Clarke v. Holmes, 7 Hurlst. & Nor. (Ex.) 937, it was ruled, that where one was employed to oil dangerous machinery, the guard or fence around which was broken, and of the dangerous character of which he had complained, the employer was...