Pursglove v. Monongahela Ry
| Decision Date | 23 November 1925 |
| Docket Number | 135 |
| Citation | 131 A. 477,285 Pa. 27 |
| Parties | Pursglove, Appellant, v. Monongahela Ry |
| Court | Pennsylvania Supreme Court |
Argued October 9, 1925
Appeal, No. 135, March T., 1925, by plaintiff, from order of C.P. Allegheny Co., Oct. T., 1923, No. 1034, refusing to take off nonsuit, in case of William F. Pursglove v. Monongahela Ry. Co. Affirmed.
Trespass under Federal Employers' Liability Act and Safety Appliance Act, for personal injuries. Before CARPENTER, J.
The opinion of the Supreme Court states the facts.
Nonsuit refusal to take off. Plaintiff appealed.
Error assigned was, inter alia, order, quoting record.
The judgment is affirmed.
William F. Marsteller, with him William L. Jacob and Anderson, Lamb & Jenkins, for appellant. -- Not only the Federal Act of 1908 applies in the instant case but also the Safety Appliance Statute of 1911 known as the Federal Boiler Inspection Act.
The case was for the jury: Baltimore & O.R.R. Co. v. Groeger, 288 F. 321; Great N.R.R. v. Donaldson, 246 U.S. 121; St. L., I.M. & S.R.R. Co. v. Taylor, 210 U.S. 281; Texas & P.R.R. Co. v. Rigsby, 241 U.S. 33.
Experts are not permitted to state their opinion in matters of common knowledge: Milwaukee, etc., Ry. v. Kellog, 94 U.S. 469.
Robert D. Dalzell, of Dalzell, Fisher & Dalzell, for appellee. -- Under the Federal Employers' Liability Act, proof of negligence is still required, as indicated by the following cases: Seaboard Air Line v. Horton, 233 U.S. 492; Southern Ry. v. Gray, 241 U.S. 333; New Orleans, etc., Ry. v. Harris, 247 U.S. 367.
Before MOSCHZISKER, C.J., FRAZER, SIMPSON, SADLER and SCHAFFER, JJ.
Pursglove was employed by the defendant company as a yard brakeman, and aided in moving cars from one track to another to make up new trains, or to combine with others for further transportation. On April 25, 1922, when the accident complained of occurred, plaintiff stood on the front of an engine, traveling at a slow rate toward a switch, intending to pass over it, and transfer certain cars which had just arrived from West Virginia. Admittedly, the employee was then engaged in interstate commerce, a claim advanced by the railroad company to defeat an award by the Workmen's Compensation Board, and the facts clearly indicated plaintiff was so occupied at the time in question: McNeill v. Director General, 272 Pa. 525.
The switching engine had attached in front a head log, and to it a foot board was held in place by brackets. Two nuts, measuring seven-eighths of an inch each, were used as fasteners, leaving the thread end of the bolt extending beyond for a short distance, variously estimated at from one-half to two inches. Pursglove was standing on the right side, and stepped from the moving engine when it came opposite the office of the company, intending to secure a drink of water there, and then pass across to the train which was to be transferred. In descending from the foot board, his raincoat caught on the end of the protruding bolt, resulting in a fall. He was dragged from ten to thirty feet before being released, and the injury, for which damages are now claimed, was inflicted. Suit was brought to recover "by virtue of the Federal Liability Act of April 27, 1918" (doubtless the intention was to refer to the Act of April 22, 1908), and, on the trial, it was insisted there had been a violation of its provisions, and also of the Boiler Inspection Act of February 17, 1911, as amended on March 4, 1915, so as to include not only boiler locomotives, and their appurtenances, but tenders used in connection therewith. A compulsory nonsuit was entered by the learned court below upon completion of the plaintiff's case, and the motion to remove it was subsequently denied. From this action this appeal has been taken.
In four particulars, the defendant was charged, in the statement of claim, with negligent conduct. It was averred that the bolts were not properly inspected, should not have been fastened with two nuts, and, if properly installed, would have been countersunk, or reversed, so that the smooth head should have been on the outside in front. All of these may be dismissed without comment, since no evidence was submitted which established any lack of due care as to the matters set forth. In passing, it may be noticed that the rules promulgated by the Interstate Commerce Commission, pursuant to the authority granted by the Safety Appliance Act, as amended, directed, -- in the cases where the location of bolts was deemed necessary of regulation, -- that nuts attached to bolts shall be on the outside, evidently to provide for easier and more thorough inspection. Where locomotives are used in switching service, as here, it is expressly required that foot boards shall be securely bolted to metal brackets each of which shall be fastened to "buffer-beam, end-sill or tank-frame by not less than two seven-eighths inch bolts" (2 Roberts Federal Liability of Carriers 1625), and the compliance with this duty imposed cannot be said to constitute negligence. The last defect alleged is that the end of the bolt was "sheared off and jagged," -- a fact not proven, -- as a result of which the coat of plaintiff was caught, and plaintiff thrown to the ground and dragged. There was evidence that the thread of the bolt extended beyond the nut, and to this extent only was the charge supported. We are now asked to say that this condition disclosed was a violation of the legislation enacted for the protection of railroad employees, and that the proof of it sufficed to establish liability.
The Boiler Inspection Act of 1911, as amended in 1915, must be read in connection with the Safety Appliance Acts of March 2 1893, and April 14, 1910, and the Federal Employers' Liability Act of April 22, 1908, as altered on April 5, 1910: B. & O.R.R. Co. v. Groeger, Ad. Op., Feb. 2, 1925, p. 164. Ordinarily, the lack of due care must be affirmatively proven before a recovery may be had: Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 58 L. ed. 1062. If, however, a violation of the provisions of the statutes referred to appears, then negligence is presumed (R.R. Co. v. Rigsby, 241 U.S. 33, 60 L. ed. 877; Director General v. Ronald, 265 F. 138), and a recovery can be had if the defect was the proximate cause of the injury: Davis v. Wolfe, 263 U.S. 239, 68 L. ed. 284. But, in the absence of proof of disregard of the legislative duty, negligence must be affirmatively shown, for it is not to be taken...
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