Woodward, Graybill & Co. v. Shumpp

• Decision Date: 21 May 1888
• Docket Number: 4
• Citation: 120 Pa. 458,14 A. 378
• Parties: WOODWARD, GRAYBILL & CO. v. F. SHUMPP
• Court: Pennsylvania Supreme Court

14 A. 378

WOODWARD, GRAYBILL & CO. v. F. SHUMPP

120 Pa. 458

No. 4

Supreme Court of Pennsylvania

May 21, 1888

Argued April 25, 1888

ERROR TO THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY.

No. 4 July Term 1887, Sup. Ct.; court below, No. 431 August Term 1885, C.P.

On August 19, 1885, an action in case for negligence was brought by Felix Shumpp against Charles R. Woodward, John D. Graybill and John G. Bobb, trading as Woodward, Graybill & Co Limited. The plea was, not guilty.

At the trial on January 18, 1887, testimony was introduced by the plaintiff from which it appeared: On August 24, 1883, the plaintiff, then in the employ of the defendants who were engaged in the coal, grain and forwarding business, in Carlisle, was directed by Mr. Bobb, one of the defendants, to assist him in shifting a car upon a track of the Cumberland Valley R. Co., which runs east and west by the defendant firm's place of business. A horse was attached by the plaintiff to the west end of the car, while Mr. Bobb ascended to the roof and managed the brake. The car was thus moved westward to a certain point, when the brake was applied, the car stopped and the plaintiff directed to move the horse and attach him to the east end of the car, which was to be moved some distance eastward upon another track. The plaintiff loosed the horse and moved him by the south side of the car to and upon the track at its east end, Mr. Bobb remaining at the brake at the west end. As the horse was about to be attached, Mr. Bobb loosed the brake and the car started eastward. The plaintiff, still trying to attach to the car drove the horse eastward, trying with his right hand to attach the hook to the car-bumper, and holding the line with his left hand. Going in this manner for fifty or sixty feet, calling several times to Mr. Bobb to stop the car, his left foot became fastened between a guard-rail and the north rail of the track, and, the car continuing in motion, he tried to throw his body outside the track, but his foot remained fastened and his left leg was crushed between his ankle and knee. Railroad iron lay piled up at the side of the track at the place of the accident. On cross-examination of the plaintiff, in his case in chief, it appeared that he had been helping in the shifting of the cars as long as he had worked around the warehouse, over twenty years, and knew it was dangerous to try to hook a car when it was moving.

The plaintiff having closed his case, the defendants moved the court to direct a compulsory nonsuit for the reason that the plaintiff had not offered such evidence as justified a verdict in his favor, being by his own statement an employee of the defendants, and at the time of the accident in discharge of a duty which was a part of that for which he was employed; and it further appearing that he was, by his own showing, guilty of contributory negligence in going before a moving car and in remaining there when he had an easy way of avoiding all danger.

By the court: Our view is about this: This motion raises this question, did the plaintiff act as an ordinarily prudent man, with a like relation existing between him and the defendant, and under like circumstances, would have avoided? If he did not do so, and his failure to do so contributed to the injury, he was guilty of contributory negligence. If he did act as an ordinarily prudent man, situated as he was, would have acted, then we do not think he would be guilty of contributory negligence. The fact that we may conceive that the plaintiff in the light of subsequent results might have acted in a manner by which this injury would have been avoided, does not alter the case. It does not clearly appear to us, from the evidence already submitted, that the plaintiff did not act as an ordinarily prudent man would have acted, like situated, and therefore we would not be justified in taking this question from the jury. The motion for a nonsuit is overruled. ^[1]

At the close of the case on the testimony, the court, SADLER, P.J., charged the jury and answered the points presented as follows:

Points on the part of the plaintiff:

1. If the jury believe that the injury to Felix Shumpp resulted from the negligence of John G. Bobb, the plaintiff is entitled to recover, and the verdict should be against all the defendants.

Answer: If you find that the plaintiff's injuries were caused by the negligence of John G. Bobb alone, he is entitled to recover.

2. If the jury believe that John G. Bobb released the brake from the car before the plaintiff had succeeded in attaching his horse to the car, and that the plaintiff exercised all the care that a reasonable and prudent man could, while endeavoring to carry out the instructions of his employer, and the motion of the car was caused by the release of the car brake, and the downward grade of the road, then the plaintiff is entitled to recover.

Answer: Affirmed, unless you find that the plaintiff was negligent in going upon the track for the purpose of attaching the horse.

3. If the jury believe from the evidence in the case that Felix Shumpp, the plaintiff, went with the horse on the railroad track in the honest pursuit of his employment under Woodward, Graybill & Co., the defendants, and in obedience to the command of Mr. Bobb, one of the defendants, who was his master and employer and who ordered him to do the work, and in the honest belief as a prudent and cautious man that while the employment was dangerous but not so much as to threaten immediate injury, but that it was reasonably probable that he could safely do so with the exercise of prudence and caution, and he did exercise the prudence and caution of a reasonable man, and by the negligent conduct of Mr. Bobb in the management of the brakes of the car Mr. Shumpp was injured, and could not have been injured except for such negligent conduct of Captain Bobb, then the verdict should be for the plaintiff.

Answer: Affirmed, if you find the facts to be as stated in this point. ^[2]

Points on the part of the defendants:

1. The evidence of the plaintiff shows that he was in the employ of the defendants; that at the time of the accident he was doing work which he had been employed to do, and which for many years he had been in the habit of doing, and with the risks and dangers of which he was well acquainted, and, if his own testimony be believed, he stepped in front of a moving car, and put himself and remained in an extra hazardous position; and that the direct cause of the accident was the want of care on his own part in watching his footsteps, and that this want of care was due to the distraction caused by his knowledge of his danger, and by watching and guarding against the extra danger of a moving car which he could have avoided; under these circumstances he cannot recover, and the verdict should be for the defendants.

Answer: We cannot affirm this point as stated, but refer to you for determination, the question whether the accident of the plaintiff was in any degree due to a failure on his part to exercise reasonable and ordinary care. If the accident was not due alone to the negligence of Mr. Bobb, and was contributed to in any degree by the plaintiff he is not entitled to recover. ^[3]

2. If the court should decline to affirm the first point, then if the jury believe that the plaintiff knew the danger of the position he assumed in front of a moving car and attempted to hook the horse to it, and continued in that dangerous position for a distance of some 60 feet until his foot caught in the guard rail, and that he had ample time while passing over that distance to move outside of the railroad tracks, then his conduct was not that of an ordinarily careful and prudent man, and he cannot recover in this action.

Answer: If the jury find the facts to be as stated in this point, and further find that the plaintiff was negligent in assuming the position that he did in front of the car, then we instruct you that he would not be entitled to recover in this action. ^[4]

3. The plaintiff must show that the proximate or immediate cause of the accident was the negligence of John G. Bobb alone, and if the jury believe that the carelessness or negligence of Shumpp contributed in any way to the injury, or that the accident was due even in a slight degree to the want of proper care on the part of Shumpp, then the verdict must be for the defendants.

Answer: Affirmed.

We charge you generally: On the 24th day of August, 1883, the plaintiff was seriously injured on the Cumberland Valley Railroad, a short distance west of this, Carlisle, borough. It appears he was in the employ of the defendants, and being requested by one of them, followed him to the warehouse of the said railroad company and procured a car for the use of their firm; that while on the errand, and while an effort was being made to put a car on the siding, the accident happened which caused the harm to Mr. Shumpp. It passed over the lower part of his left leg, crushing it so that it had to be amputated, and the other one was so hurt that a considerable portion of the integument had to be removed from a portion of it near the foot. The plaintiff was confined to the house for three or four months, about two of them being spent in his bed, and his capacity to earn wages has been largely reduced. A wooden leg has been substituted for the lost one. He charges that the harm thus came to him was the result of negligence on the part of Captain Bobb, one of the defendants, this negligence consisting in the loosening of a brake before the horse was attached to the car, and in not heeding calls to stop it after plaintiff found that he was unable to fasten the hook to the car, and he seeks in this action to recover damages on account thereof. . ....