Reed v. Pittsburgh, Cincinnati, Chicago, & St. Louis Railway Co.

• Decision Date: 05 January 1914
• Docket Number: 201
• Parties: Reed v. Pittsburgh, Cincinnati, Chicago, and St. Louis Railway Co., Appellant
• Court: Pennsylvania Supreme Court

90 A. 359

243 Pa. 562

Reed v. Pittsburgh, Cincinnati, Chicago, and St. Louis Railway Co., Appellant

No. 201

Supreme Court of Pennsylvania

January 5, 1914

Argued November 5, 1913

Appeal, No. 201, Oct. T., 1913, by defendant, from judgment of C.P. Allegheny Co., Second T., 1911, No. 528, on verdict for plaintiff in case of Walter Reed v. Pittsburgh Cincinnati, Chicago and St. Louis Railway Company. Affirmed.

Trespass to recover damages for personal injuries. Before BROWN, J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff of $3,500, and judgment thereon. Defendant appealed.

Errors assigned were in refusing to direct a verdict for defendant and to enter judgment for defendant n.o.v.

The judgment is affirmed.

W. S Dalzell, of Dalzell, Fisher & Hawkins, for appellant.

John J. Heard, with him George E. Shaw, of Reed, Smith, Shaw & Beale, for appellee.

Before BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE MESTRZAT:

There was evidence to warrant the jury in finding sufficient facts to support the verdict for the plaintiff and the case was, therefore, for the jury. The accident occurred and the plaintiff lost his leg by reason of the disobedience of the "slow" order by the trainmen operating the train which struck the plaintiff, and their failure to give the proper signals of the approach of the train to the trestle or bridge. A concrete bridge was being built by the plaintiff's employer, the McKelvy-Hine Company, for the defendant railway company. He was, therefore, indirectly working for the defendant in the construction of the bridge. He had charge of the mixer and one of his duties required him to see that the cement did not clog, and that it flowed freely through the chute to the forms which were directly below the trestle or steel bridge. It is true he could have inspected the chute by going beneath the trestle, but if the material clogged in the chute and the mixer had to be stopped he would have had to communicate with the man operating it through two or three other men instead of giving the signal direct. The customary and habitual way of performing this duty was to go on the trestle about fifty or sixty feet east of the mixer from which point he could observe the flow of the concrete through the chute and in case of the material clogging he could communicate directly with the man in charge of the mixer and stop the machine. It was not, therefore, only reasonably necessary but quite necessary that the service be performed in this way if it was to be done effectively by the plaintiff himself and not indirectly through others. The fact that it was done in this way for such length of time without any known objection on the part of his employer or the defendant company would indicate that the plaintiff was performing his duties in the proper way by going on the trestle to inspect the chute.

There can be no question under the evidence that the employees of the construction company, engaged in erecting the concrete bridge, used the trestle from the time the work was begun in May until the accident happened on the thirtieth of July following. This was done without any protest or objection by the defendant company. In addition to the use made of it by Reed, the plaintiff, in inspecting the chute, he and the other employees used it for many purposes, such as to repair the chute, to cross to the company store for anything they wanted, and in carrying material and tools from one side of the creek to the other. They also laid a pipe line on the trestle to carry steam across the bridge to operate a pump which was pumping water from the excavations on the other side of the creek. The men would cross in gangs of a dozen or fifteen at a time, and the testimony is that the trestle was used by them daily and almost hourly until the accident occurred. This use of the bridge...