Williams v. Monongahela Connecting R. Co.
| Decision Date | 01 March 1909 |
| Docket Number | 82 |
| Citation | 72 A. 811,223 Pa. 482 |
| Parties | Williams v. Monongahela Connecting Railroad Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued October 22, 1908
Appeal, No. 82, Oct. T., 1908, by defendant, from judgment of C.P. No. 3, Allegheny Co., May T., 1904, No. 237, on verdict for plaintiff in case of William R. Williams v. Monongahela Connecting Railroad Company. Reversed.
Trespass to recover damages for personal injuries. Before KENNEDY P.J.
The facts of the case are stated in the opinion of the Supreme Court.
Verdict and judgment for plaintiff for $3,029. Defendant appealed.
Errors assigned amongst others were in refusing binding instructions for defendant.
Judgment reversed and is here entered for the defendant.
Wm. A. Challener, with him James C. Gray and Clarence Burleigh, for appellant. -- Plaintiff was guilty of contributory negligence: Downey v. Ry. Co., 28 W.Va. 732; Thane v. Traction Co., 191 Pa. 249; Woodroffe v. Roxborough, etc., Ry. Co., 201 Pa. 521; Bainridge v. Traction Co., 206 Pa. 71; McDade v. Rapid Transit Co., 215 Pa. 105; Harding v. Phila. Rapid Transit Co., 217 Pa. 69; Warden v. R.R. Co., 94 Ala. 277 (10 So. Repr. 276).
F. W. Miller, with him John S. Robb, for appellee. -- The plaintiff's duty required him to be upon the pilot at the time he was hurt and it was the uniform custom for employees discharging the duties the plaintiff was performing at the time the accident happened and was immediately thereafter to perform, to ride upon the pilot. The plaintiff could therefore not be held guilty of contributory negligence by reason alone of his being upon the pilot no matter what accident occurred. Even if the plaintiff, however, could be deemed guilty of contributory negligence at all by the mere reason that he was standing upon the pilot, it would only be with reference to accidents which he would be bound to foresee in the ordinary course of events, such as a collision. An accident such as the one which happened, due to the cause which gave rise to it, was not one which the plaintiff in any event was bound to foresee. The rule as to proximate cause is just as applicable to contributory negligence as to negligence itself: Gray v. Scott, 66 Pa. 345; Kibele v. Phila., 105 Pa. 41; R.R. Co. v. McCloskey, 23 Pa. 526; Baughman v. R.R. Co., 92 Pa. 335; Penna. R.R. Co. v. Zink, 126 Pa. 288; Hammer v. Steel Car Co., 204 Pa. 594.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.
Appellee was not an employee of appellant company. He was a freight conductor of the transporting railroad company which in making up its train used the line of the defendant railroad company. The engine on the pilot of which he was riding at the time of the accident belonged to the transporting railroad company. The appellant had constructed a short line of railroad to connect the tracks of the transporting railroad with the furnaces from which the finished product was taken out and to which raw materials and other freight were carried in. The only duty resting upon the appellant company was to provide a reasonably safe roadbed and tracks over which the engine, trains and employees of the transporting railroad company could be carried into and out of the yards of the furnace company. It is contended that appellant failed in the performance of its duty in that it did not maintain its roadbed and tracks in a safe condition for the purpose intended. As to the alleged negligence of the defendant the evidence is meagre and somewhat indefinite, but on the whole we think it was sufficient to submit to the jury on this branch of the case. The burden, however, was on the plaintiff in the court below not only to establish the negligence of the defendant, but to make out a case free from contributory negligence on his part. Did he meet this burden? In his testimony in chief the plaintiff described the position occupied by him on the pilot of the engine, commonly known as the cowcatcher, at the time of the accident. He stood with his right foot on the angle iron that formed the base of the pilot, his left foot resting higher on one of the bands of iron running around the pilot and being part of it, his left hand resting on the wooden cross tie to which the pilot was attached, and his right hand hanging loosely by his side. While in this position, the engine moving at a moderate rate of speed, and while crossing over the tracks of a street railway, there was a slight sinking of the tracks on which the engine was moving which caused the nose of the pilot to dip and strike one of the rails of the defendant railroad. The jar or jolt caused the plaintiff to lose his balance, and he was thrown from the pilot on which he stood and received the injuries for which he seeks to recover damages. It must therefore be determined whether under these circumstances he has made out a case free from contributory negligence. This question in one form or another has been passed upon in many jurisdictions, and it has been uniformly held that to ride upon the pilot in front of an engine without a necessity for so doing, or unless the railroad company by its rules authorizes employees to ride on the pilot in certain instances, or where provision is made for the employee to stand in front of the engine for the convenient discharge of duty, as in the case of a shifting engine used in yards where trains are made up, and for other...
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