Garrett v. Beaver Valley Traction Co.

Opinion by Me. Justice Fell, The plaintiff was employed as an inspector of air brakes at the yard of the Pennsylvania Company at Conway, on the line of the defendant's street railway. He lived with his parents [589] near the line of the Ohio River Junction Railroad, whose track crossed that of the defendant at grade at Crow’s Run. This railroad is seven miles in length and is used mainly to transfer freight cars to and from factories to the tracks of another road. It has no passenger cars, stations or regular stopping places, but its trains are stopped or slowed to enable passengers to get on or off at any point on the road. Passengers ride in the cab of the engine or on the tender, and get on and off at a step at the back of the engine. The plaintiff in going to and returning from his work used both roads, changing from one to the other at Crow’s Run. On the evening when he was injured, he came from Conway to Crow’s Run on the defendant’s car and got off at the rear platform after the car had stopped at a waiting room 200 feet from the crossing. He saw an engine backing a train of freight cars slowly over the crossing from east to west. He ran on the east side of the public road and reached the railroad track as the engine was passing. He placed his right foot on the step, caught the hand hold, and as he placed his left foot on the floor of the cab or was in the act of raising it to the floor, he was struck by the defendant’s car from which he had alighted. He at no time stepped on the track of the defendant company. There was ample evidence of the negligence of the motorman in allowing his car to collide with the engine. The question to be considered is whether the case should have been withdrawn from the jury on the ground of the plaintiff’s contributory negligence. On the facts, the turning point of the case in the plaintiff’s favor is that he did not step on the defendant’s track. He was carried there while on the engine. He had safely passed the peril of getting on a moving engine and his negligence in that regard was not the cause of his injury, although a circumstance that made it possible. But against such a possibility he was under no duty to guard because he had no reason to apprehend danger from the defendant’s car when on the engine. There was no causal connection between his negligence and his injury. The case is governed by the principles stated in Boulfrois v. Traction Co., 210 Pa. 263, and Besecker v. Railroad Co., 220 Pa. 507. [590] A part of the charge relating to the compensation for the loss of earning power is assigned for error. The learned judge in calling the attention of the jury to matters to be taken into consideration in arriving at a conclusion on the amount of compensation spoke of the probability of the plaintiff’s improving, of his being able to perform other kinds of work, and of his “living out the allotted time of three score years and ten.” The general instruction on the subject was accurate and thorough, and the jury were distinctly told that they could allow only the present worth of earning power “ from the time he reached twenty-one years for and during the remainder of his probable natural life.” The language quoted was no doubt suggested by the argument of plaintiff’s counsel that seventy years was the proper period to fix. There was not, as in Dooner v. Canal Co., 164 Pa. 17, the statement of a rule not founded on evidence to be followed by the jury, but rather a caution, in view of the argument advanced, to consider the probabilities. The judgment is affirmed.