Philadelphia And Reading Railway Company v. Winkler

• Citation: 20 Del. 387,56 A. 112
• Court: United States State Supreme Court of Delaware
• Decision Date: 19 June 1903
• Parties: THE PHILADELPHIA AND READING RAILWAY COMPANY, defendant below, plaintiff in error, v. GEORGE E. WINKLER, plaintiff below, defendant in error

56 A. 112

20 Del. 387

THE PHILADELPHIA AND READING RAILWAY COMPANY, defendant below, plaintiff in error, v. GEORGE E. WINKLER, plaintiff below, defendant in error

Supreme Court of Delaware

June 19, 1903

Supreme Court, January Term, 1903.

WRIT OF ERROR to the Superior Court in and for New Castle County.

The action brought below was for damages for personal injuries to the plaintiff, claimed to have been sustained under the following circumstances, viz.: That on the nineteenth day of February, 1901, he was in the employ of the Philadelphia and Reading Railway Company, the defendant, as head brakeman of the shifting crew which was using shifting engine No. 1242 and its tender in moving and delivering interstate commerce cars at the siding on the south side of the City of Wilmington, the defendant then and there being a common carrier of passengers and freight; that while coupling the tender to the next car, using a "bull-nose" coupler, without fault on his part, his right hand was caught between the couplers, resulting in the loss of three fingers and otherwise crushing and injuring his hand; that the "bull-nose" coupling on the tender was dangerous and unlawful; that he was inexperienced in the business of a brakeman, and was not warned or instructed by the defendant as to the risk thereof; that his injuries were caused by the defendant's negligence.

The defendant, on the other hand, claimed that the engine and tender were not engaged in moving interstate commerce at the time of the accident, but merely in moving local traffic that the "bull-nose" used on the tender at that time was necessary in order to safely move cars around sharp curves in the Diamond State Steel Co.'s yard, where the automatic couplers would not work, and was a reasonably safe and proper appliance for such purpose; that, moreover, the tender and cars were equipped with automatic couplers, as required by law; that the plaintiff sought work as a competent brakeman, and also actually received instructions as to the risks of his employment, which risks and dangers were also open and known to the plaintiff. That the latter's injuries were the result of his own carelessness.

It was conceded that the relation of master and servant existed between the plaintiff and the defendant at the time of the accident.

The points relied upon by plaintiff in error in the argument in the Supreme Court were as follows:

First. That the Court erred in submitting to the jury the question as to whether the Act of Congress passed March 2, 1893 requiring the use of automatic couplers on cars used in interstate commerce, applied to the facts proved in this case.

Second. That the Court below erred in allowing the following question to be answered:

Q. "Where did the cars come from that were hauled generally on that road by that engine and tender?"

And in not confining the question to the particular car or cars that were being shifted at the time of the accident.

Third. That Section 8 of the Act of Congress known as the "Safety Appliance Act," would, if applied to the facts proved by the evidence in this case, be in violation of the Constitution of the United States.

Fourth. That the Court erred in charging the jury "that the defendant would be engaged in moving interstate commerce even though the car to which the tender was coupled was not the car used in interstate traffic, if the removal of such car was a necessary step in getting at and moving said interstate car."

Fifth. That the Court erred in not charging the jury as requested by the defendant, that, assuming that the Act of Congress applies to the case, the defendant was justified in making use of the "bull-nose" in connection with the automatic couplers, where, by reason of sharp curves in the Diamond State Steel Company's yard, the automatic couplers could not possibly be used without such, or a similar device.

Sixth. That the Court should have instructed the jury, as requested by the defendant, that if the plaintiff, voluntarily, knowingly, without objection and without special orders from the defendant, used the said "bull nose," which was easily detachable from the automatic coupling, at the time of the accident in a place where it was not necessary by reason of sharp curves in the track to use the same, he assumed whatever risk was thereby occasioned.

Seventh. That the Court erred in not charging the jury, as requested by the defendant, that if the plaintiff, knowing the "bull nose" was being used of necessity on the sharp curves in the yard of the Diamond State Steel Company, voluntarily made use of the same, without objection on his part and without being especially ordered to use it on the occasion of the accident, the defendant would be liable.

* * * *

Ninth. That the Court erred in not charging the jury, as requested by the defendant, that the alleged danger was patent and obvious.

Tenth. That the Court erred in not charging the jury, as requested by defendant, that if the master and servant had equal knowledge or equal means of knowledge of the risk and danger connected with the devices in use at the time of the accident the servant could not recover.

Eleventh. That the Court erred in not giving a binding instruction to the jury, as prayed for by the defendant, that the defendant was not guilty of negligence.

Twelfth. That the Court erred in not charging the jury, as requested by the defendant, that the plaintiff was guilty of contributory negligence.

Thirteenth. That the Court erred in not charging the jury, as requested by defendant, that plaintiff was injured in consequence of an ordinary risk incident to the service in which he was engaged, and could not therefore recover in this...