Hannon v. Delaware, Lackawanna & Western Railroad
Hannon v. Delaware, Lackawanna & Western Railroad
Opinion of the Court
The opinion of the court was delivered by
The plaintiff as administratrix of Martin T. Hannon, deceased, recovered a judment against the defendant, based on the death of Hannon through the alleged negligence of the defendant, and the latter appeals. The plaintiff’s case showed that the deceased was employed by the defendant to check a cargo of freight being unloaded from a barge of the defendant; that it, consisting of iron plates, was being moved from the barge to a car by a crane, and while a draft was being moved he sat down on the rail of the barge next to a short upright or bit; that within a few seconds after this he was found dead on the deck; that another barge of defendant, with an overhanging stern sufficient to overlap the rail, was being towed into a slip near by, and the claim is that this overhanging stern crushed deceased against the bit and killed him. Ho one saw the actual collision, but the stem of the barge was seen very near and moving toward the place where deceased was sitting, and in a position where it might overlap the barge and inflict the injury, if it was not skillfully managed. Ho other cause for the accident was apparent.
The first point made by the appellant is that there should have been a direction for defendant on the ground that there was no proof that the barge struck decedent, and therefore
Appellant’s next point is that the trial court- erroneously instructed the jury, on the question of assumption of risk, “that the negligence of the master or employer is not one of these risks,” citing Boldt v. Penn. R. R. Co., 245 U. S. 441. But all that is determined by that case is that the employe assumes risks due to the negligence of the master only when obvious and fully 'known to, and appreciated by, the servant. There is no such situation in this case, for it cannot be properly claimed that the deceased knew that when he sat down on the rail that the master would negligently run him down with another barge, and therefore that was not one of the ordinary risks of the employment.
Appellant’s next point is that the court refused to charge a request, that there was no proof that the failure of the captain of the tugboat to blow an alarm whistle was the proximate cause of the injury and death of Hannon,, and under such circumstances the trial court could not predicate liability upon the defendant because of the failure of the captain of the tug to blow an alarm, '.there was evidence in the case that it was the custom under such conditions to give a notice, although there were no written rules concerning it.
The request was directed to the determination of a question of fact, that is, an instruction that there was no proof that the want of a signal was the proximate cause. This requested the finding of a fact, for a signal, if given, might have warned the deceased and prevented the accident, and the refusal to so charge was not error.
Appellant’s next point is that the trial court refused defendant’s request to charge that if the jury should find for the plaintiff they must not assess the damage according to its
Appellant’s last point argued was that it was not lawful for the court to reopen the case, as it did, after it was closed and allow another witness to be called and testify.
That was within the discretion of the court and not reviewable on error. In addition to this the testimony the witness gave was of no consequence and the defendant withdrew his objections and took no exception.
The judgment will be affirmed, with costs.
For affirmance — The Chancellor, Chief Justice, Swayze, Trenchard, Pabkee, Bergen, Mintürn, Black, Katzenbacii, White, Williams, Gardner, Ackerson, Van Buskirk, JJ. 14.
For reversal — None,
Reference
- Full Case Name
- JULIA HANNON, ADMINISTRATRIX v. DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY
- Cited By
- 2 cases
- Status
- Published