Stewart v. Central R. Co. of New Jersey

• Decision Date: 18 March 1912
• Docket Number: 297
• Citation: 235 Pa. 311,84 A. 38
• Parties: Stewart v. Central Railroad Company of New Jersey, Appellant
• Court: Pennsylvania Supreme Court

84 A. 38

235 Pa. 311

Stewart v. Central Railroad Company of New Jersey, Appellant

No. 297

Supreme Court of Pennsylvania

March 18, 1912

Argued January 12, 1912

Appeal, No. 297, Jan. T., 1911, by defendant from judgment of C.P. No. 4, Phila. Co., Dec. T., 1907, No. 2523, on verdict for plaintiff in case of Harrison H. Stewart v. Central Railroad Company of New Jersey. Affirmed.

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

The facts are stated in the opinion of the Supreme Court.

At the trial the jury returned a verdict for the plaintiff for $20,000, upon which judgment was entered for $15,000, all above that sum having been remitted. Defendant appealed.

Errors assigned were in refusing binding instructions for defendant and in dismissing defendant's motion for judgment non obstante veredicto.

The assignments of error are overruled and the judgment is affirmed.

Arthur G. Dickson, of Dickson, Beitler & McCouch, for appellant. -- The unplanked condition of the trestle on which the plaintiff tripped was an assumed risk of his employment: Sykes v Packer, 99 Pa. 465; Brossman v. R.C. Co., 113 Pa. 490; Trainor v. R.R. Co., 137 Pa. 148; Boyd v. Harris, 176 Pa. 484; West v. Southern Pacific Co., 85 Fed. Repr. 392; Narramore v. Ry. Co., 96 Fed. Repr. 298; Tuttle v. Detroit, etc. Ry. Co., 122 U.S. 189 (7 S.Ct. Repr. 1166); Southern Pacific Co. v. Seley, 152 U.S. 145 (14 S.Ct. Repr. 530); Goldthwait v. Ry. Co., 160 Mass. 554 (36 N.E. Repr. 486); Goodes v. R.R. Co., 162 Mass. 287 (38 N.E. Repr. 500); Ragon v. Ry. Co., 97 Mich. 265 (56 N.W. 612); Henderson v. Coons, 31 Ill.App. 75.

The plaintiff was guilty of contributory negligence: Pittsburgh & Connellsville R.R. Co. v. Sentmeyer, 92 Pa. 276; N.Y., L.E. & W.R.R. Co. v. Lyons, 119 Pa. 324; Dooner v. Canal Co., 171 Pa. 581; Gibson v. Ry. Co., 63 N.Y. 449; Finnell v. R.R. Co., 129 N.Y. 669 (29 N.E. Repr. 825); Kansas & T. Coal Co. v. Reid, 85 Fed. Repr. 914.

The defendant was not negligent: Cunningham v. Bridge Works, 197 Pa. 625; Boyd v. Harris, 176 Pa. 484; Tuttle v. Ry. Co., 122 U.S. 189 (7 S.Ct. Repr. 1166); Ragon v. Ry. Co., 97 Mich. 265 (56 N.W. 612); Kerrigan v. R.R. Co., 194 Pa. 98; Batterson v. Ry. Co., 53 Mich. 125 (18 N.W. 584); Koontz v. Ry. Co., 65 Iowa 224 (21 N.W. 577); Maue v. R.R. Co., 198 N.Y. 221 (91 N.E. Repr. 629); Graham v. Ry. Co., 62 Fed. Repr. 896; West v. Southern Pacific Co., 85 Fed. Repr. 392.

Francis Shunk Brown, of Simpson, Brown and Williams, for appellee. -- Where the measure of duty is ordinary and reasonable care, and the degree of care varies with the circumstances, the question of defendant's negligence should be left to the jury: Cohen v. R.R. Co., 211 Pa. 227; Esher v. R.R. & Mining Co., 28 Pa.Super. Ct. 387; McMahen v. White, 30 Pa.Super. Ct. 169; Colorado Midland Ry. Co. v. Brady, 45 Colo. 203 (101 Pac. Repr. 62).

In many cases it has been held that mere proof of the dangerous obstruction on, or defect in the railroad track, will without more, impute negligence to the railroad company: Choctaw, Oklahoma & Gulf R.R. Co., v. McDade, 191 U.S. 64 (24 S.Ct. Repr. 24); Galveston, H. &. S.A. Ry. Co. v. Slinkard, 17 Texas Civ. App. 585 (44 S.W. Repr. 35).

In the following cases it was held that where ditches, cattle guards, etc., in a yard, or at any point on the roadbed where employees are apt to go in switching and coupling cars, are left uncovered, and the employees fall into them, negligence will be imputed to the defendant: Plank v. N.Y.C. & H.R.R.R. Co., 60 N.Y. 607; (Sliceway under track two feet wide and two feet deep). Franklin v. Winona & St. P.R. Co., 37 Minn. 409 (34 N.W. 898); Millen v. N.Y.C. & H.R.R. Co., 20 A.D. 92 (46 N.Y.S. 748) (ditch 8 to 10 inches deep and 4 inches wide); Hollenbeck v. Missouri Pacific Ry. Co., 141 Mo. 97 (38 S.W. Repr. 723, 41 S.W. Repr. 887) (open ditch 10 inches wide and 8 inches deep; Hennesey v. Chicago & N.W. Co., 99 Wis. 109 (74 N.W. 554), (ditch from 4 to 6 inches in depth; Davidson v. So. Pacific Co., 44 F. 476, (ditch extending across track); Peoria, Decatur & Evansville Ry. Co. v. Puckett, 42 Ill.App. 642, (unnecessary cattle guard caused accident); Korah v. Chicago, etc., Ry. Co., 128 N.W. 529; Ford v. Ry. Co., 106 Iowa 85 (75 N.W. 650; Fredenburg v. Ry. Co., 114 N.Y. 582 (21 N.E. Repr. 149); Bird v. R.R. Co., 11 A.D. 134 (42 N.Y.S. 888).

The unplanked trestle, which caused the injury here, was not the usual and customary form of trestle maintained by railroads within yard limits, and was very much more dangerous than the ordinary planked trestle: Cunningham v. Bridge Works, 197 Pa. 625; R.R. Co. v. Hughes, 119 Pa. 307; Vorhees v. Ry. Co., 193 Pa. 115; Whitcher v. R.R. Co., 70 N.H. 242 (46 A. Repr. 740); Louisville & Nashville R.R. Co. v. Johnson, 81 Fed. Repr. 679; St. Louis & San Francisco R.R. Co. v. Keller, 62 Pac. Repr. 905; Hannah v. R.R. Co., 154 Mass. 529 (28 N.E. Repr. 682); Ross v. Ry. Co., 101 Minn. 122 (111 N.W. 951); Sturgeon v. R.R. Co., 93 Pac. Repr. 526; Northern Pac. R.R. v. Teeter, 63 Fed. Repr. 527; Sutherland v. R.R. Co., 43 Fed. Repr. 646; Vaillancourt v. Ry. Co., 82 Vt. 416 (74 A. Repr. 99); Plank v. R.R. Co., 60 N.Y. 607.

The custom of railroads as to planking their trestles was properly submitted to the jury: Kaylor v. R.R. Co., 216 Pa. 134; Bardsley v. Gill, 218 Pa. 56; Pauza v. Coal Co., 231 Pa. 577; Penna. R.R. Co. v. Jones, 123 Fed. Repr. 753.

If the risk arising from the presence of the unplanked trestle within yard limits was the result of defendant's negligence, it is not a risk which was assumed by the plaintiff unless it is shown that the plaintiff knew of the danger and disregarded same: Choctaw, Oklahoma & Gulf R.R. Co. v. McDade, 191 U.S. 64 (24 S.Ct. Repr. 24); Colorado Midland Ry. Co. v. Brady, 45 Colo. 203 (101 Pacific Repr. 62).

The plaintiff was not guilty of contributory negligence: Esher v. R.R. & Mining Co., 28 Pa.Super. Ct. 387.

Before FELL, C.J., BROWN, MESTREZAT, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The plaintiff, a freight brakeman in the employ of the defendant Company, had his feet crushed by one of its trains on the night of August 6, 1910, at about 10.30 o'clock, which necessitated the amputation of both legs a few inches below the knee. The train, which consisted of fifty-two loaded cars and a caboose, had been brought to a stand-still by the breaking of an air-hose, at a bridge or unplanked trestle across a creek within the limits of a railroad yard of the defendant Company.

The plaintiff's testimony shows that, when the train stopped, in the performance of his duties he descended to the ground and started ahead on the right-hand side; after going a short distance he found the walk too narrow, and crossed over to the left-hand side of the train, advancing between the east and west bound tracks. In the meantime the fault had been located and remedied, and the train started. The plaintiff stood and watched "to see that everything was all right;" which he said he understood the rules of the Company and the proper performance of his duties required. He then testified, "Everything seemed to be all right. . . . I ran along a few steps with the train and got hold of the grabiron . . . as anyone would with anything in motion, and I came on this trestle and my toes went down between the ties, and that threw me off my balance. I still held on the grab-iron, trying to catch myself, so that I could get on the train, but I went down, and that is the last thing I remember." It appears that the plaintiff ran along a cinderpath that could be used with safety, that this path at the point where the accident happened suddenly terminated at the unplanked trestle which caused him to trip and fall. The plaintiff stated that although he had previously ridden in the cars over this part of the road, his train had never stopped there before and he had no knowledge concerning the condition of the trestle prior to the happening of the accident; further, that in the regular performance of his duties a freight brakeman was obliged to get on and off moving trains; "that it would be impossible to railroad without doing it." This statement was not denied, and one of the principal witnesses for the defense admitted the custom, stating as to "the ordinary way of mounting a freight train" that "the greater the speed the longer the run you have until you get on. You get the swing of the train, the speed of the train, . . . . If it is speeding up pretty well you have to run longer until you get the speed of the train to make the mount." Upon the testimony produced the jury had the right to find that the unplanked trestle in the railroad yard at the point where the accident happened presented an unusual, unsafe and dangerous condition which could easily have been remedied by the use of due and customary care on the part of the defendant company.

All the issues involved were clearly presented by the learned trial judge. The jury were instructed that the plaintiff had to be absolutely free from contributory negligence; that it was for them to say whether or not he was at fault in any of his conduct immediately prior to or at the time of the accident and if such fault contributed to the happening of the accident, he could not recover; they were also told that it was for them to say whether they would believe the plaintiff's story, or the version of the defense, as to the accident and certain statements alleged to have been made by the plaintiff which were inconsistent with his testimony; and if they believed the defendant's version the plaintiff could not recover; and, further, that if the plaintiff's duties did not...