Woodward, Graybill & Co. v. Shumpp

Opinion, Mr. Justice Clabk: It is contended by the counsel for Woodward, Graybill & Co., Limited, that the admitted facts of this case exhibit clear contributory negligence on the part of Felix Shumpp; that the case should not have been submitted to the jury, but the court should have given ■ specific and binding instructions to find for the defendants. The first and second points submitted by the defendants’ counsel were doubtless intended to raise [468] this question in the court below, and, as they were refused, we will consider the case as if the points were in this precise form. A brief reference to the facts is necessary to a complete understanding of the case. In the recital of the circumstances under which the injury was received, we, of course, assume the proof of the plaintiff’s testimony, as it is upon this theory of the case the defendants contend the plaintiff cannot recover. Woodward, Graybill & Co. were, in the year 1883, engaged in the coal, grain, and forwarding business in Carlisle. John G. Bobb was a member, and Felix Shumpp an employee of the company. On the 24th of August, of that year, Bobb called upon Shumpp to assist him in shifting a car from the side track to the main track of the Cumberland Yalley Railroad Company, for some purpose connected with the business of the defendants. Shumpp, by Bobb’s direction, hitched a horse to the west end of the car and hauled it up the grade to a point above the switch, where the brake was applied. The horse was then unhitched and driven to the east end of the car to pull it back on the main track. Whilst the horse was between the rails, and before Shumpp could attach the chain to the bull-nose of the car, Bobb loosened the brake, and the car, impelled by its own gravity, started slowly down the grade; Shumpp, holding the line in his left hand, attempted to attach the chain to the car with the right; the horse was a spirited animal and he did not succeed. He called repeatedly to Bobb to stop the car, but the brake was not applied, and after advancing fifty feet or more in the effort to hitch the horse, his left foot became fastened between the guard rail and the north rail of the track; the car came upon him, and cut and crushed his left leg so that amputation became necessary. It is undoubtedly true, as a general proposition, that one who places himself on the track in front of a moving railroad car assumes a place of known danger, and will ordinarily be supposed to accept the peril and risk to which he thus recklessly subjects himself. It is equally true where he engages to perform a hazardous work he takes the risks incident thereto: Rummell v. Dilworth, 111 Pa. 343; P. & R. R. Co. v. Hughes, 119 Pa. 301; but if the master, by any negligent act not involved in or reasonably incident to that work, causes his servant to receive a personal injury, he is responsible therefor, if [469] the servant did not otherwise contribute to the result. When Shumpp placed himself in front of this car he did so by the direction of Bobb, his employer, and had no reason to suppose that the brake would be lifted until he had completed the connection with the car. Before this could be done, however, the car was set in motion, and he was obliged to regulate the movements of his horse, observe the approach of the car, watch his opportunity to connect the hook with the car, and have regard for his own safety, all at one and the same time. He had committed himself and the horse to the space in front of the car on the track, whilst the brakes were on, and the car standing still; and it was the negligent act of Bobb which put the car in motion before Shumpp was prepared for it. There were piles of railroad iron and other obstructions at the side of the track, which prevented him from leaving it, and as the car advanced towards him he was obliged to keep out of its way, under all the embarrassments stated. If these facts are true, can it be pretended that the court would have been justified in saying, as matter of law, that Shumpp was guilty of negligence ? The rate of speed at which the ear was moving, the nature and extent of the obstructions at the side of the track, the spirit and conduct of the horse, and the manner in which the plaintiff conducted himself throughout the transaction were all matters to be considered in arriving at a conclusion on the question of contributory negligence. The plaintiff, as we said in Lee v. Woolsey, 109 Pa. 124, must in all cases “show a case clear of his concurrent negligence, a case resulting exclusively from the negligence and wrong of the defendant; but when the measure of care which he ought to have exercised, shifts with the circumstances, or when the care which ought to be exacted from an employee has been varied by his employer, the jury alone can determine whether he negligently performed his duty.” We are of opinion that the case was one for the determination of the jury, and that it was fairly submitted. The judgment is affirmed.