Edsberg v. Baldwin Locomotive Works

Opinion by Mr. Justice Elkin, At the trial the learned court below refused'a point'for binding instructions in favor of the defendant, and Subsequently overruled the motion for judgment non Obstante veredicto, upon the whole record. These rulings are made the subject of the two assignments of error upon which appellant relies. The decision of the case depends entirely upon the question whether it was for the jury or for the court. Of Course, the burden was on the plaintiff to establish by competent testimony the negligence of the defendant, and his case in chief must not disclose contributory negligence on his part. As to the negligence of the defendant the testimony introduced at the- trial in our opinion was sufficient to meet this burden. The jury would have been fully , warranted in finding the following facts from the evidence: That it was the duty of the crane operator to keep a lookout for men working on or above the runway; that on the day of the accident he knew appellee and his assistant were working above the tracks; that if looking in the direction the crane was moving be could baVe seen where appellee was standing and the danger he was in; that.he was not looking in the direction the crane was moving at the time of the* accident; that he was looking in the opposite direction from that in which the crane was moving; that the crane was not loaded and was entirely subject to his control; that he could have avoided the accident if he had looked and seen appellee standing on the [618] . girder some sixty feet above the ground; that he violated his instructions to run the. crane carefully, “and to look that the track was clear before he started it up”; and . that if he .had performed his duty, in these respects the ..accident would .not have happened. Under these facts and the. inferences to be drawn fr.om.them.it was for the jury to say whether appellant had failed in the performance of any duty it owed appellee. It was likewise the province of the jury to. determine under the facts whether appellee was guilty of contributory negligence. It is only in clear cases,, where, the .facts are undisputed and but one inference can be drawn frpm them, that negligence can be declared as a matter of law. This is certainly, not such a. clear case. The injured man was getting down from the place above the tracks where in the performance of his duties of employpnent he was required to be,, and it was necessary to take .his, tools down.with hipn and this is what he was attempting to do when the crane run him down. It is true that he was standing, with, his back to the crane, but before „ he. .took, this position he looked , both ways to see if the cranes ..were, moving toward him.,,. He saw both cranes . standing, stationary, and, from his knowledge and observation had, a right to . assume that the operator of the crape, on. the runway, upon which he was standing would keep, a lookout and. protect him in his dangerous position,. He;was standing on the girder , for the purpose of receiving his tpols from his, assistant who was handing them down, , and .this was in the line, of his duty. It was for the, jury to, say whether, there, was a better or less dangerous place to stand op whether he had failed to do What a prudent man would, have clone under the circumstances. The, trial. Judge, would not have been warranted in declaring him, guilty of contributory negligence as a matter of laW; . The charge of, the learned court below was. fair and impartial. It covered every feature, of, the ..case and left to the jury all disputed questions of fact with .proper instructions as to the law. [619] Np complaint is .made as to the manner, of submission and we cannot agree that the case should have been taken from the jury. Thorson v. Carnegie Steel Co., 238 Pa. 166, where a recovery of damages was sustained practically rules this case. Judgment affirmed.