Vannatta v. Central Railroad

Opinion by Mr. Justice Thompson, At South Easton the Lehigh Valley Railroad Company has a yard in which are sidings for the reception of its trains. Its yard master designates by signals the sidings to which trains are to be sent. The appellant’s husband was employed by it as an inspector of cars in this yard. On June 30, 1891, the Central Railroad Company of New Jersey, whose railroad connects with that of the Lehigh Valley Railroad Company, sent into this yard a mixed train, consisting of box, flat and coal cars. The men in charge of it were known as a drill crew and made with it a “ flying drill.” This is accomplished by putting the train into rapid motion and while thus moving cutting loose the locomotive from it, and by its momentum running it into the designated siding. This was done with the train in question and its conductor delivered his waybills for it to the yard master and train dispatcher of the Lehigh Valley Railroad Company. He then mounted his locomotive; the head brakeman and crew left the train upon the siding and some of them also mounted the locomotive. It was testified by some of the witnesses that a whistle was blown and that the locomotive started back to Phillipsburg. Upon the arrival of the train upon the siding appellant’s husband‘began to inspect its cars, and while so engaged under the second car at the west end of the train the Central Railroad Company’s employees, finding that the train had not entirely cleared the siding, returned with their locomotive, and pushed it forward. Appellant’s husband was at this time under the bumpers, was unable to crawl out and was killed. The learned trial judge held that when the Central Railroad [270] Company of New Jersey took its cars for ■ shipment over the line of the Lehigh Valley Railroad Company to the yards of that company it did' that duty by the direction of the officers of the Lehigh Valley Railroad Company, and it did a duty which belonged to it. That while it was the act of the Central Railroad Company it was also the act of the Lehigh Valley Railroad Company, because it was a performance by it of labor by reason of its employment by the last named railroad company. That the employees of the Central Railroad Company, while so engaged upon the tracks of the Lehigh Valley Railroad Company in performance of a duty of that companjq became its employees, and that an injury caused by them or either of them to an employee of the Lehigh Valley Railroad Company, by the negligence of themselves, is the negligence of a co-employee, for which there can be no recovery. The vice of the position lies in the assumption that the point of the connection of the two railroads was the actual place of delivery of the train, and that all that was done between that point and the siding in the yard of the Lehigh Valley Railroad Company was done in performance of a duty which the latter company was required to do. A connecting carrier is bound to deliver the goods to a succeeding one, or at least be ready to deliver them. It has the right to decline freight not delivered within reasonable times before the departure of trains, or when not delivered at the place designated for the delivery. - “ The liability of a connecting carrier does not begin, and the duty of the first carrier is not completed until there has been an actual delivery to the connecting one: ” American and English Encyclopedia of Law, volume 2, page 869. In the present case there was no delivery intended at the point where these roads connected with each other, but the place of delivery was upon a designated siding in the yard of the Lehigh Valley Railroad Company, and when therefore the train in question was placed upon the siding so designated, and the train accepted by the latter company, it was then a delivery. This train was placed upon the siding, the waybills were delivered, the crew of the Central Railroad Company in charge of it left it, the engineer of the locomotive whistled and started to return to New Jersey, as testified by some of the witnesses. The receipt of the train upon .the siding, the delivery of the [271] waybills, the leaving of the train by the employees of the Central Railroad Company, placed that train in the control of the Lehigh Valley Railroad Company, and was a delivery of the same: Pratt v. R. R., 95 U. S. 45. It cannot be said that because the yard master designated the siding upon which the train was to be placed, it, from the time of such designation, became that of the Lehigh Valley Railroad Company, and the Central Railroad Company became a mere employee of the first named company. The yard master of the Lehigh Valley Railroad Company indicated where the trains were to be placed upon the sidings by the connecting company. Such designation of a siding did not change in any way the custody or control of the train. The Central Railroad Company’s employees remained as such in charge until the delivery of the train upon the siding indicated. It is necessary to have a yai'd master to designate in yards the sidings for the receipt of trains, otherwise such confusion would arise as to practically impede the business of the yard. The designation by such yard master did not constitute a delivery to the Lehigh Valley Railroad Company or an acceptance by it of the train. If it did not, the control of that train did not pass to that company. It follows therefore that the Central Railroad Company while thus moving the train to the siding was not an employee of the Lehigh Valley Railroad Company. It was about making its delivery to that company and was not doing any duty to be performed by the Lehigh Valley Railroad Company. When it placed that train upon the siding, delivered its waybills to the Lehigh Valley Railroad Company, withdrew its brakemen and conductor from it, whistled and signaled to return its locomotive to New Jersey and started back, it completed its delivery of the train. The learned trial judge therefore erred in holding that the- Central Railroad Company of New Jersey while thus hauling the train in question from the connection of the two roads to this point was an employee of the Lehigh Valley Railroad Company. As to the application of the act of 1868, relating to railroad companies and common carriers, defining their liabilities, etc., the learned trial judge expressed no opinion, because he said it was not necessary under his view of the case to decide the question. As the case must be retried it is proper that the [272] question should be determined. The act provides “ That when any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots, and premises of a railroad company, or in or about any train or car therein or thereon of which company such person is not an employee, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee.” In the late case of Spisak v. Baltimore and Ohio Railroad Company, 152 Pa. 283, in which Mr. Justice Mitchell classifies the cases upon this act, in concluding, he says : “ The railroad company had delivered the car, its duty in that respect was ended, and its further duty of taking it out had not begun. The intermediate unloading, shifting and weighing the car was the work of the steel company, done for it, on its own land by its own employees. The connection of the railroad company with the place of the accident by reason of its joint use of the tracks for other purposes was an immaterial circumstance that did not affect the relations of the plaintiff to it, or the work he was engaged in.” It will be observed in that case that the crew had actually delivered the car to the steel company and that although there was a joint use of the track by the steel company and the railroad company the plaintiff was not within the statute. In the present case, this train of cars having been delivered to the Lehigh Valley Railroad Company, it would follow as in that case that the statute did not apply to the appellant’s husband. At the time of the accident he cannot be treated as an employee of the Central Railroad Company. He was not working about its cars or its railroad, but on the contrary was engaged in work about the cars of the Lehigh Valley Railroad Company, and about its track. It was contended that the present case was within the rulings of Mulherrin v. R. R., 81 Pa. 366, and Stone v. R. R., 132 Pa. 206. It will be found that in the first case one company owned the track and the other had the right of trackage for its cars. There were two railroad companies operating, under an agreement, one track. It was thus substantially the road of each company and the court held that it was not a question of the extent of the title. It was by reason of the joint agreement the road of the defendant, and this was sufficient to bring [273] the case within the act of 1868. In the second case the plaintiff when injured was working about a train of defendant in charge of its employees. In the present case the Central Railroad Company delivered its train upon the siding in question. The siding was in no sense its road and it was not operated by it. The act of 1868, the act in question, does not apply to the appellant’s husband in this case. The learned trial judge expressed no opinion in his charge upon the subject of contributory negligence. Where there is a reasonable doubt as to the facts or the inferences from them, the question of negligence is a question for the jury. In this case, as there are reasonable doubts both as to the facts as well as to the inferences, the question of contributory negligence with proper instructions is one for the jury. Judgment reversed and a venire facias de novo awarded.