Royer v. Pennsylvania Railroad

Opinion by Me. Justice Potter, The plaintiff brought this action of trespass to recover damages for injuries resulting, as he claimed, from the negligence of an employee of defendant company.- He was employed as a locomotive fireman, upon an engine drawing á train engaged in interstate commerce, so that the case is governed' by Federal law, and the fellow-servant rule does not' apply. The contention of the plaintiff is that, on April 24,1914, his engine had stopped at a yard, en route, and was being supplied with water. He was at the time standing upon the tender holding the arm of a water spout. Another locomotive stood upon [441] the adjoining track, the whistle being some ten feet from him. Suddenly and without warning there was emitted from the whistle of the adjacent locomotive, two loud, shrill blasts. He says he was shocked and startled, and immediately felt a pain in his ear, and that, after finishing the run for the day, he did not again return to the service of defendant, owing to the condition of his ear, and the necessity for medical treatment. He claims that his injury was due to the loud blasts of the whistle emitted close to his ear, without previous warning, and that the injury has resulted in complete loss of hearing in one ear. The trial judge left to the determination of the jury the question whether, when the engineer blew the Avhistle, he should, ás a man of reasonable prudence, have anticipated the danger of injury to the plaintiff, AArho was in rather close proximity to the Avhistle, and, should, therefore, have given him warning before it-was blown. The verdict of the jury must be accepted as a finding that under the circumstances, danger of injury to the plaintiff from the bloAving of the whistle Avas reasonably to have been anticipated, and that the engineer Avas guilty of negligence in failing to Avarn plaintiff before bloAving the Avhistle. Prom the judgment entered upon the verdict, defendant has appealed, and the question is, Avhether the verdict was justified by the evidence. Admittedly,the question,whether plaintiff was injured as claimed, was for the jury; but counsel for appellant urge that there was no evidence Avhich justified a finding that the experience or knowledge, which an engineer might be expected to have, should have warned him not to blow his Avhistle without first giving notice to the plaintiff. As the record stands, we think this point is well taken. In the evidence which was admitted, Ave can find nothing from which the jury were warranted in finding that defendant or its servants had reason to anticipate that blowing the whistle as alleged by plaintiff, at a distance of ten feet from where he was standing, was [442] likely to affect Mm injuriously. The effect upon bystanders of the blowing of a locomotive whistle, under such circumstances, is hardly a matter of common knowledge, and it should, therefore, have been shown by evidence. The record shows, however, that there was an offer of evidence, upon the part of plaintiff, to prove that it is customary to give warning to persons working within a distance of ten or fifteen feet of the whistle of an engine standing in a yard, as was this one, before the whistle is blown, and that it is the general custom for those in charge of such an engine to look out for persons in close proximity to engine whistles, and warn them that the whistle is about to be blown. This offer of evidence was excluded, upon the objection of counsel for defendant. If such a custom exists, it may fairly be inferred that it is based upon experience which has shown the danger of injury to bystanders from the blast of a whistle. Had the offer been admitted, and had the testimony come up to the terms of the offer, it might well have justified the jury in inferring that the engineer should have anticipated danger to plaintiff from blowing the whistle without warning, when plaintiff was in such close proximity to it; and that it was unusual for a locomotive whistle to be blown under such circumstances without warning. Counsel for defendant are not in a position to press an advantage arising out of a lack of evidence upon the part of plaintiff, when such evidence was improperly excluded upon their own objection. If the plaintiff were here upon appeal, alleging error in the exclusion of the testimony offered in this respect in his behalf, it would be necessary to sustain his appeal. Upon the record as it stands, the judgment is reversed with a venire facias de novo. .