Stepanovich v. Pittsburgh & Baltimore Coal Co.

• Decision Date: 08 January 1915
• Docket Number: 1889-1914.
• Citation: 218 F. 604
• Parties: STEPANOVICH v. PITTSBURGH & BALTIMORE COAL CO.
• Court: U.S. Court of Appeals — Third Circuit

218 F. 604

STEPANOVICH v. PITTSBURGH & BALTIMORE COAL CO.

No. 1889-1914.

United States Court of Appeals, Third Circuit.

January 8, 1915

Geo. C Bradshaw, of Pittsburgh, Pa., for plaintiff in error.

Charles B. Prichard, of Pittsburgh, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below, Marko Stepanovich, a subject of the King of Hungary, brought suit in his own behalf and as father and next friend of his minor son John, against the Pittsburgh &amp Baltimore Coal Company, a corporation of Pennsylvania. The action was for damages inflicted on said John through the alleged negligence of the coal company. On the trial defendant asked for binding instructions, on the ground that there was no proof of negligence on its part. The court refused the request and submitted the case to the jury. It found a verdict for the plaintiff. On entry of judgment thereon defendant sued out this writ.

The liability of the defendant to the plaintiff here declared on is that the coal company failed to furnish young Stepanovich its employe, with a reasonably safe brake for him to use on the coal-pit car which injured him, and that the coal company had no proper car inspection system in the mine. In a case like this, an accident is not proof of an employer's negligence, but the employe must go further and prove the employer's negligence caused the accident. The principle on which this case must be determined is laid down by the Supreme Court of the United States in Looney v Metropolitan Co., 200 U.S. 486, 26 Sup.Ct. 305, 50 L.Ed. 564, where that court said: 'To hold a master responsible, a servant must show that the appliances and instrumentalities furnished were defective. A defect cannot be inferred from the mere fact of an injury. There must be some substantive proof of the negligence. Knowledge of the defect, or some omission of duty in regard to it, must be shown.'

The happening of the accident to young Stepanovich was not therefore proof of negligence on the part of the coal company, and it is our duty to examine the evidence and see whether it shows any substantive proof of negligence, or what is the same thing, lack of due care on the part of the coal company in regard to this brake, whether it had any knowledge of such brake being defective, or whether it has omitted some duty in regard to it.

To make out the required proof of the coal company's negligence, the plaintiff showed that on March 11, 1910, his son was employed as a switch boy by the coal company, and that it was his duty to receive, from a passing motor train, a certain pit car loaded with slate and place it on the switch which he attended. This, he says, his son attempted to do, but by reason of the company furnishing an improper brake he was thrown under the car and injured. At this point it will be noted that there is no charge that the brake on the car was not originally of proper construction, but the charge is that the coal company failed to keep it in proper order. The car and brake were of the usual kind. The former was about three feet high and some four feet across the top. Pivoted at a central point at the bottom of its front end was an iron brake handle. This handle extended above the top of the car, so that, while one was going alongside of the car, he could push or pull the brake handle toward or away from him as far as an encircling iron rod or keeper, fastened on the end of the car, would allow the brake handle to travel. Inside this rod, and fastened to the car end, was a notched iron bar, the teeth of which engaged and held the handle as the brake engaged the wheels. What happened is best told in young Stepanovich's own testimony, which was:

'Q. When you attempted to stop this car this morning, what happened? A. I went straight with the brake. Q. Did the brake stop? A. It didn't stop; it went straight on. Q. What happened to you? A. When I put my weight on it I went straight with the brake. Q. How far did the brake go? A. It went clean on the other end of this thing. Q. How much farther than ordinarily? A. If it would be in good order, it might catch pretty close to the center. When it is wore out, the brake or

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