Pittsburgh Rys. Co. v. Thomas

• Decision Date: 29 November 1909
• Docket Number: 49.
• Citation: 174 F. 591
• Parties: PITTSBURGH RYS. CO. v. THOMAS.
• Court: U.S. Court of Appeals — Third Circuit

174 F. 591

PITTSBURGH RYS. CO. v. THOMAS.

No. 49.

United States Court of Appeals, Third Circuit.

November 29, 1909

James C. Gray, for plaintiff in error.

Rody P Marshall, for defendant in error.

Before GRAY, BUFFINGTON, and LANNING, Circuit Judges.

GRAY Circuit Judge.

The defendant in error, David F. Thomas (hereinafter called the plaintiff), brought suit against the Pittsburgh Railways Company, the plaintiff in error (hereinafter called the defendant), to recover damages for injuries to the said plaintiff, occasioned by the alleged negligence of the defendant. There was a verdict, and judgment thereon, in favor of the plaintiff. From the record brought up by the writ of error sued out by the defendant, it appears that the defendant was a corporation of the state of Pennsylvania operating certain electric street railways in what was formerly called the city of Allegheny, but what is now a part of the city of Pittsburgh. On the 27th day of November, 1907, the plaintiff was a conductor on a motor car on one of the lines in said city. When he arrived at the end of said line, it became his duty to attach a trailer car, which was standing there, to what was then the front of his car but which would be the rear of his car on the return trip to the city. The motorman, one Conway, having stopped the car a distance of from two and a half to five feet from the trailer car, the plaintiff went between the two cars for the purpose of coupling them, and, standing somewhat to one side and holding the drawhead and pin, one in each hand, made a signal to the motorman to move his car up in order to make the coupling. The plaintiff says that after the signal was given, the car came so quickly that he remembered nothing, except that it caught him and crushed him between it and the trailer. The plaintiff had been for some time running on this particular line, but says that he had never before had Conway as a motorman. Conway testifies that when he received the signal to close up on the trailer, he put on only what is called one notch of power, the least that would serve to move the car. The plaintiff says that from his five years' experience in motor cars, it could not have come as quickly as it did without more than two notches of power. He also says that it was slightly upgrade at that point, and more power would be required on that account. There was testimony of two or three witnesses, who were 1 1/2 or 2 blocks away, that their attention was called to the accident by hearing the crash of the two cars coming together.

The negligence charged by the plaintiff's statement of claim is the primary negligence of the defendant, as master, in employing Conway, the motorman, who, it was alleged, was incompetent, to the knowledge of the defendant, or in retaining him in its employ after it had, or should have had, knowledge of his incompetence. The charge of negligence is not entirely clear or apt in the language employed to express it. The rule of law invoked, however, is the undoubted one, that it is the duty of the master to use due care, that is, the care that would be exercised by an ordinarily prudent man, under the circumstances of the particular case, to select servants competent and fit for the performance of the duties required of them. This care, of course, must have regard to the character of the employment and to the dangers that may result to others, including co-employes, from the lack of such competence or fitness. This, as we have said, is a primary duty of the master, and cannot be delegated by him so as to avoid responsibility for its due performance. While one who enters the service of another takes, as a risk of his employment, the risk of negligence of a fellow servant, he never assumes the risk of the negligence of the master.

The charge here made, that the injuries suffered by the plaintiff were due to the negligence of the defendant, in employing or retaining in his employ one who was incompetent or unfit for the service required of him, and that such incompetence or unfitness was known, or ought to have been known, to the defendant prior to the accident, must be proved, like every other charge of negligence, by a preponderance of testimony to the satisfaction of the tribunal trying the same. The burden of proof, of course, is always on the plaintiff.

After the conclusion of the testimony, counsel for the defense asked for binding instructions that, under all the evidence, the verdict should be for the defense, and, after verdict in favor of the plaintiff, made a motion for judgment non obstante veredicto, under the Pennsylvania statute. Assignments of error to the refusal of the court to allow these motions were duly filed.

After a careful reading of the testimony, we think that these assignments should not be allowed. The question was a close one, but we think there was evidence to be submitted to the jury, tending to show the incompetence and unfitness of the motorman for the position in which he was placed; also tending to show that the defendant had knowledge, or might have had knowledge, by due inquiry, of such incompetence and unfitness; and also evidence tending to show that the action of the motorman, which occasioned the accident, was due to such incompetence and unfitness. As to all three of the points just mentioned, it is incumbent upon the plaintiff to satisfy the jury. We by no means intend to be understood as saying that there was such a preponderance...