Stoltenberg v. Pittsburg & Lake Erie R. R.

Opinion by Mb. Justice Fell, At the time of his injury the plaintiff was in the employ of the defendant as a tinner. He had been working for several months at the company’s shops, and on the morning of the accident was sent to a station some miles distant to make repairs on the roof of a passenger car. The car was standing on a side track, and he was told that it would remain there until noon, and that he would have ample time to do the required work. Pie had been on the top of the car but a short time when an engine was attached to it. It was drawn rapidly forward, and he was struck by a wire stretched across the tracks and seriously injured. When the car moved he arose from his work and walked forward on the upper deck to learn the cause of the movement. As he approached the front of the car the smoke and cinders from the engine came directly against his face, and to avoid them he turned his head to one side, and was struck by the wire almost immediately afterwards. The wire, which was used as a guy to support a pole, was stretched across the track at a height of nineteen feet and one inch, and the top of the upper deck of the car was fourteen feet and four inches above the tracks. The main roof was some seventeen inches lower. The plaintiff was not employed in the movement of trains, and he had no knowledge of the existence of the wire. There was nothing to call for unusual vigilance upon his part to avoid such a danger, nor was there anything to warn him of it. His only opportunity to avoid it was during the few moments after the car had started, wheii he was in a position of danger without neglect on his part, and when he was bewildered by smoke and [381] cinders from the engine. He was held by the , charge to the full measure of duty in this respect, and the case could not have been taken from the jury either upon the ground of contributory negligence or of the negligence of an employee in moving the car. The remaining assignment relates to the portion of the charge excepted to, and we are of opinion that under the facts of the case it cannot be sustained. The negligence charged against the defendant was in maintaining a wire improperly and negligently strung across the tracks. While this might not have been dangerous to men employed in the movement of freight trains, because of the smaller size of the cars, or to those engaged in the ordinary operation of the road, it was still a fair question for the jury whether in the use of the siding for passenger cars and their repair thereon the wire was not a source of manifest danger to the company’s employees. If the use was probable and the danger was one to have been reasonably anticipated, the defendant was held to the duty of guarding against it. The case, as was said by the learned judge before whom it was tried, is a close one, but we think it could not have been taken from the jury; and it was submitted in a charge which clearly and adequately stated the law applicable to the testimony. The judgment is affirmed.