Geesey v. Palmer Lime & Cement Co.

Per Curiam, One branch of the defendant’s business at York was the crushing of stone, which was shipped away on flat cars over a spur from the track of the Pennsylvania Railroad. There was a trestle over the spur with sufficient head room for flat cars, but not for an engine or a large car, so the loaded cars were removed by coupling them to flat cars pushed in for that purpose. On the evening of November 19,1919, for some unexplained reason, the railroad company, for the first time, attempted to reach the loaded cars by pushing in a large car which struck a beam at the top of the trestle thereby crushing plaintiff’s arm as he stood on the bumper of that car in the performance of his duty as a railroad brakeman. The track and trestle had been in the same position for over ten years, were in good order and fit for their intended use; while defendant bad no notice of an intent [149] to use them for a different purpose. The condition was patent and defendant was not bound to anticipate the remote possibility of the railroad company attempting to run a high car under the low trestle: see Stoneback v. Thomas Iron Co., 2 Sadler 97, 17 W. N. C. 295. Under such circumstances the trial judge rightly directed a verdict for defendant on the ground that it was free from negligence; hence, plaintiff’s appeal from the judgment entered thereon is not well founded. The judgment is affirmed.