Quinn v. Shamokin & Mount Carmel Electric Railway Co.

• Decision Date: 19 February 1898
• Docket Number: 4-1898
• Citation: 7 Pa.Super. 19
• Parties: Sarah Quinn v. Shamokin and Mount Carmel Electric Railway Company, Appellant
• Court: Pennsylvania Superior Court

7 Pa.Super. 19

Sarah Quinn v. Shamokin and Mount Carmel Electric Railway Company, Appellant

No. 4-1898

Superior Court of Pennsylvania

February 19, 1898

Argued December 13, 1897

Appeal by defendant, from judgment of C. P. NorthumberlandCo.-1896 No. 180, on verdict for plaintiff.

Trespass.Before Savidge, P. J.

The facts sufficiently appear in the opinion of the court.

Verdict and judgment for plaintiff for $ 863.Defendant appealed.

Errors assigned among others were refusal of binding instructions for defendant.Refusing defendant's fourth, sixth and seventh points, which points are as follows: " 4.The evidence shows that the proximate cause of the collision in which the plaintiff was injured was due to the act of a mere volunteer, for which act the carrier was not responsible, as it was not within the scope of his employment or done while in the company's service, and therefore she cannot recover.6.That if the jury believe from the evidence that the plaintiff must have been injured in an effort to leave the car while in motion, that so doing was such contributory negligence as will prevent a recovery in this action, in default of evidence of negligence on the part of railway company, and the verdict must be for the defendant.7.That in default of evidence of any contractual relation between the plaintiff and her fathershe cannot recover for loss of earning capacity, but can only recover for the moneys expended by herself and for the physical pain and suffering she has sustained."

Affirmed.

C. M Clement, with him Voris Auten, for appellant.-- There is no negligence on the part of a carrier, if the injury would not have happened but for the intervening negligence of a third party: Ebright v. Mineral R. &M. Co., 2 Mon. 126.

Where a servant is employed at a particular place to do a fixed service at a set price, upon his completing his day there, is no longer an employee of the company, but is an employee only when at his place of work: McNulty v. Penna. R. R.,182 Pa. 479.

Nor can the intention of an employee to serve his master avail and charge the master with the responsibility for his wrongful acts: Marionv. C. R. Co., 8 Amer. & Eng. R. R. Cas. 177.

If a servant by his negligence does damage, the master is answerable, but the damage must be done while he is actually employed in his master's service: Allegheny R. R. Co. v. McClain,91 Pa. 442;Baird v. Pettit,70 Pa. 483.

When there is no evidence that a servant was acting in the line of his duty and within scope of employment, it is error to submit the question to the jury: Walkerv. R. R. Co. 59 Amer. & Eng. R. R. Cas. 607.

W. H. M. Oram, with him P. A. Mahon and Jno.W. Gillespie, for appellee.

Before Rice, P.J., Wickham, Beaver, Reeder, Orlady, Smith and Porter, JJ.

OPINION

PORTER, J.

This suit was brought to recover damages for personal injuries sustained by the plaintiff in a collision, which occurred on the line of the defendant company, on June 30, 1895.The plaintiff became a passenger on one of the defendants' electric cars, leaving Mt. Carmel about 6 o'clock in the evening to go to her home at Shamokin.When the car reached a village called Green Ridge it lost its power of traction through what is known in electrical science as a " shunted field coil," the effect of which was to cause the wheels to revolve rapidly without propelling the car.

One William Visick, noticing the difficulty under which the car was laboring, went to the assistance of the motorman, put ashes upon the track to assist the car, and when the car was finally stopped, went on foot to the car barn, got out an empty car and started to the relief of the stalled car.In descending the grade towards the latter Visick lost control of his car, and there ensued a collision of sufficient force to injure some of the passengers in the stalled car.Among the passengers injured was the plaintiff.

It was contended by the plaintiff that the defendants were responsible for the acts of the man Visick, through whose negligence the collision occurred.It was answered by the company that Visick was not an employee at the time of the accident; that the plaintiff contributed to her injury by her negligence in attempting to jump from the car, and that there was no evidence of the earning capacity of the complainant upon which to base a verdict.

Visick was employed by the defendants at their car barn as a blacksmith, and as a shifter and cleaner of cars.His hours of daily duty, as alleged by the defendants, were from seven in the morning until five at night.This accident occurred at about half past six in the evening.It appears further that at times he acted as motorman, on a branch line and occasionally on the main line.He was asked,

" Q. You work on cars on the main line at times?

A.Yes,...