Noll v. Phila. & Reading R. R.

Opinion by Mr. Justice McCollum, The defendant company contends that the court should have taken the case from the jury and that there was error in the instructions under which it was submitted to them. It asserts that there was no evidence of any negligence on its part in connection with the injury complained of, that if there was such evidence the plaintiff was guilty of contributory negligence which was. a bar to his claim for damages, and that he and the men engaged in shifting the cars were fellow servants. If either of these assertions is true the plaintiff was not entitled to recover. But we are satisfied from our examination of the case that the evidence made the alleged negligence of the defendant company a question for the jury, that it was for them to determine whether he was guilty of contributory negligence, and that the plaintiff and the shifting crew were not “ engaged in the same common work and performing duties and services for the same general purposes,” and therefore they were riot fellow servants. The plaintiff was not an employee of the defendant company or on the footing of one under the act of April 4, 1868. He was not employed on or about the roads, works, depot, or premises “'of the company,” or “ in or about any train or car therein or thereon ” in the sense that relieves it from liability to him for an injury received through the negligence of its employees: Spisak v. R. R. Co., 152 Pa. 281. [508] Negligence being the absence of care according to the circumstances, the plaintiff was not negligent in getting on the car if he did what a person of ordinary prudence would have done in the presence of the conditions developed by the evidence in the case. If, however, he did not exercise the care such a person would have exercised under the circumstances, his act was negligent; and if it contributed in an}*- degree to the injury he received, it is a sufficient answer to his claim. It was for the jury to ascertain, from the evidence, and under proper instructions, the nature of the act and its relation to the injury. Did they receive such instructions in this case ? The defendant company alleges they did,not, and to substantiate its complaint in this particular it appeals to the portion of the charge which constitutes the first specification of error. It seems to us that this instruction considered by itself was misleading. From it the jury might reasonably infer that the plaintiff could recover although it was his own negligence that exposed him to, and made possible, the injury he received. It should be borne in mind that the negligence imputed to him is that he got, or attempted to get, upon the car before the work assigned to the defendant company was completed and before he was warranted by the conduct of the company, or otherwise, in believing that it was. If he did so he disregarded his employer’s orders and placed himself where he was forbidden to be while the company was engaged in the work of shifting the cars. The company was not bound to know that he was there and he certainly knew or had reason to apprehend the danger to which he voluntarily exposed himself. Under such circumstances an instruction which virtually withdrew from the jury the question of his alleged contributory negligence was erroneous, and we are not satisfied that it was cured or rendered harmless by other portions of the charge. The first specification of error is sustained and the second and third specifications are overruled. Judgment reversed and venire facias de novo awarded.