Whittaker v. Valley Camp Coal Co.

• Citation: 103 A. 594,260 Pa. 209
• Decision Date: 07 January 1918
• Docket Number: 20
• Parties: Whittaker v. Valley Camp Coal Company, Appellant
• Court: Pennsylvania Supreme Court

103 A. 594

Whittaker v. Valley Camp Coal Company, Appellant

260 Pa. 209

No. 20

Supreme Court of Pennsylvania

January 7, 1918

Argued October 8, 1917

Appeal, No. 20, Oct. T., 1917, by defendant, from judgment of C.P. Allegheny Co., July T., 1915, No. 392, on verdict for plaintiff, in case of Alfred Whittaker v. Valley Camp Coal Company, a Corporation. Affirmed.

Trespass to recover damages for personal injuries.

SHAFER P.J., filed the following opinion:

The plaintiff was a brakeman in the employ of the defendant, and his duty was to ride upon the locomotive with the driver only when necessary to get off and apply brakes or when standing on the ground beside the train. His testimony was that a train of ten or more cars had been left standing on the main track and that he and the driver took the motor in the morning when they were going to work, attached it to the cars and drew it down upon the switch, which was upon somewhat of a down grade, and that coming near the end of the switch they heard another train coming towards them and that he then hastily jumped off the locomotive and went back to apply his brakes and was injured against a post. The opening in the coal at the place of the accident was from 160 to 175 feet long and 16 feet wide, and contained a main track and the switch of that length, the cars on the main track and switch respectively running close to the coal. According to the uncontradicted testimony as to the width and situation of the tracks there was about five feet between the switch and the main track. In this space between the switch and the main track there were, according to the defendant and the plaintiff's witnesses, about twelve props which were situated close to the switch, so that there was three or four inches between them and the cars standing on the switch leaving a clear space of two and a half feet or more between the main track and the line of the posts and leaving a space of from 13 to 15 feet or more between the posts. The plaintiff testifies that he was well acquainted with the place and that he had notified both the mine foreman and the superintendent, about two weeks before the accident, that he considered the posts dangerous, and he testified that they promised to remove them and that he, therefore, kept on working, relying upon that promise. He testified that in some way -- he don't know how -- he was squeezed against one of these posts when in the act of attempting to brake one of the cars. The injury he received was a fracture of the pelvic bone. He was off work about a month and then went back to the same company and worked for them about a year and a half and left their employ and worked for another company for several months, and then brought this suit. There was no question that the pelvic bone was healed up and he had no deformity in that respect but it was testified, and not denied, that at the fracture the bony substance was thrown out and some of the muscle attached to the bone at that place was ossified so that he was unable to raise his leg as high as before, and suffered some pain and inconvenience in that respect. There was no evidence of any substantial loss of earning power, plaintiff claiming that he lost one-third of his wages in the year and a half he worked for the company, but the pay roll indicated that he made as much as he did before.

It appeared from the evidence that the entry in question including the track and switch, was driven before 1911; that in December, 1911, the posts referred to were put in position, and that they remained there ever since, at least up to the time of the trial. The plaintiff did not furnish any evidence as to how the posts came to be there, but the defendant put on the stand the mine foreman who was in their employ in December, 1911, although not employed by them at the time of...