Sage v. Lehigh Valley Railroad

Opinion by Mr. Justice Potter, In this action the plaintiff sought to recover damages for personal injuries resulting from the negligence of the defendant company. The testimony shows that the plaintiff was seventeen years old at the time of the accident, and was employed by defendant as flagman on a work train. At times he also helped to make up trains. He went to work at the upper depot in Towanda, on the morning of December 21, 1907, while it was still dark. He was directed to assist in switching out a certain car called a rail loader, which was standing on a siding. It was necessary to uncouple the rail loader. This involved the use of what is known as a cut lever, at the end of the car, which is operated from the outside of the car, and while standing outside of the track. When the lever is pulled, it raises the locker of the coupling, and releases the car. Upon this occasion when plaintiff tried to pull the cut lever he could not do so. It was bent in the center, which made it bind against the end — 51 — of the car, and it was disconnected with the chain that raised the locker. He reported this condition to the conductor, and was then told to “go inside and cut them by hand,” meaning that he should go inside the track and between the cars. When he did not at once move to do so, he was again roughly ordered by the conductor to cut the cars, and do it quick if he wanted to work. The conductor further said that it was perfectly safe to do so. Plaintiff then went between the cars, took hold of the chain and was trying to pull it up when the cars came together, and his left arm was caught between the bumpers and crushed so that it had to be amputated. It appears from the evidence that plaintiff was without experience in cutting cars by hand, and had received no instructions from the defendant as to the proper method of severing the coupling in the manner in which he was ordered to do it. He had not before the accident seen anyone disconnect a coupling by hand. When he reached in to pull the pin out, the cars were standing still, and after he had taken hold of the pin and was endeavoring to pull it out, the cars moved and his arm was caught. It appeared that the rail loader had been in the yard four or five days before the accident. The inspector of cars employed by the defendant testified that he saw the rail loader within an hour after the accident, and that the lever was bent somewhat so that it would not work. He also said that the rail loader had been in the yard four or five days before the accident, and that he was reprimanded by the yard master because during that time the lever had not been fixed. Counsel for plaintiff also offered in evidence certain printed rules of defendant company to the effect that the trainmen and flagmen while on duty are under the direction of the conductors. The questions of defendant’s negligence, and plaintiff’s contributory negligence were submitted to the jury, and a verdict in favor of the plaintiff was returned. Motions for a new trial and for judgment for defendant notwith — 52 — standing the verdict were overruled, and judgment was entered. Defendant has appealed. The first and third assignments of error are to the refusal by the court below of defendant’s point asking for binding instructions, and to the refusal to enter judgment for defendant n. o. v. That the cut lever was defective and would not do the work for which it was intended is not disputed. The evidence was sufficient to warrant a finding by the jury that the defect had existed long enough to charge the defendant with notice of the condition, and that proper inspection of the appliance was not made. But it does not appear that the condition of the lever was known to the plaintiff just before the accident. He was not in any way misled by the condition of the. lever. He knew it could not be used for the purpose for which it was intended, and he reported that fact to the conductor, and in obedience to the orders of the conductor, then given, he went between the cars for the purpose of uncoupling them by hand. The actual and proximate cause of the injury to the plaintiff was therefore his own act in endeavoring to uncouple the cars by hand. He acted not upon his own volition, but rather reluctantly, at the direct order of the conductor. The evidence shows that he was without experience in uncoupling cars by hand, and that he had received no instructions as to how to do it. He testified that the conductor assured Mm that he could pull the pin by hand in safety, saying to him, “The cars won’t move, and it is perfectly safe.” Under these circumstances it was a question for the jury, under proper instructions, to determine whether the conductor was negligent in directing the plaintiff to uncouple the cars by hand, without cautioning him against the danger of the operation, and whether such negligence was the proximate cause of the injuries which he received. The evidence tends to show that the plaintiff hesitated to go between the cars and uncouple them by hand, and that he only did so on the express assurance of the con — 53 — ductor that the cars would not move at the time, and that he would be perfectly safe. Yet they were moved, and apparently a slight movement was necessary to un-, couple them. No instructions were given plaintiff as to how to avoid the danger, and no precautions appear to have been taken for his protection. In Kearns v. Steel Co., 230 Pa. 328, our Brother Mestrezat said (p. 331): “It is the duty of an employer not only to instruct an employee, ignorant of the dangers incident to his work by reason of age, inexperience or other causes, but also to point out to him how those dangers may be avoided.” The fellow-servant rule cannot be invoked by appellant in this case. It falls clearly within the terms of the Act of June 10, 1907, P. L. S23, in section one of which it is provided that “the negligence of a fellow-servant of the employee shall not be a defense, where the injury was caused or contributed to by......the negligence of any person in charge of or directing the particular work in which the employee was engaged at the time of the injury or death; the negligence of any person to whose orders the employee was bound to conform, and did conform, and by reason of his having conformed thereto, the injury or death resulted.” Here the conductor was in charge of the work of making up the train which was being performed at the time. By the rules of the company, the plaintiff was under the direction of the conductor, and obliged to obey his orders. He did so, and by reason thereof he was injured. It was a question of fact for the jury to decide whether or not the order was negligently given, coupled as it was with the assurance to the plaintiff that there was no danger. The witness, William Zurn, offered by defendant testified that in order to uncouple cars it is necessary to bump them together, in order to take off the strain, and slacken them up, and that by reason of the bumping of the cars together there is danger in uncoupling them by hand. The plaintiff also testified that after he went between — 54 — the cars to uncouple them he saw the conductor give a signal with his lantern, and the brakeman on the train testified that before the accident he got a signal to back the train, and communicated it to the engineer, and that the engine did back up before plaintiff was hurt. In Glew v. Pittsburgh Railways Co., 234 Pa. 239, the plaintiff, a motorman, suggested to his superior officer that it would be dangerous to run the kind of load he was hauling over the tracks in the condition in which they were. He was ordered to proceed, and in carrying out the directions the tracks separated, causing an accident which injured the plaintiff. In that case, in an opinion adopted by this court, it was said (p. 241) : “If the servant suggests the danger and the master says or does that which leads the servant to believe that his fears are not well founded and that the master’s judgment is that, notwithstanding the defect, the tracks can be safely used, the servant has a right to rely upon the superior judgment of his master, and if he does and injury happens, the master is liable.” The rule is more elaborately stated in 1 Shearman & Redfield on Negligence (5th Ed.) § 186, where it is said: “A servant is not called upon to set up his own unaided judgment against that of his superiors, and he may rely upon their advice and still more upon their orders, notwithstanding any misgivings of his own....... The servant’s dependent and inferior position is to be taken into consideration; and if the master gives him positive orders to go on with the work, under perilous circumstances, the servant may recover for an injury thus incurred, if the work was not inevitably or imminently dangerous.” This statement of the principle involved was thus quoted with approval, and applied in Reese v. Clark, 198 Pa. 312. There is no merit in the fourth assignment, in which . complaint is made of the inadequacy of the charge as a whole. If further or more specific instructions were desired, they should have been requested at the time. — 55 — Special opportunity for this was given by tbe trial judge, at tbe close of tbe charge. Tbe assignments of error are overruled, and tbe judgment is affirmed.