Sage v. Lehigh Valley Railroad
Sage v. Lehigh Valley Railroad
Opinion of the Court
Opinion by
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
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
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
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.
Tbe assignments of error are overruled, and tbe judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.