Vilsock v. Youghiogheny & Ohio Coal Co.
Vilsock v. Youghiogheny & Ohio Coal Co.
Opinion of the Court
Opinion by
This was an action of trespass brought in behalf of John Vilsock, Jr., by his father and next friend, John Vilsock, Sr., and by the latter in his own right, to recover damages for injuries resulting from the alleged negligence of the defendant. It appears from the evidence that John Vilsock, Jr., was between eighteen and nineteen years of age when he received the injuries for which recovery is here sought, and that he had then been employed by the defendant for some three years, and was familiar with the operation of electric motors used in hauling coal from the mines, and that for a time he was in charge of such a motor. During a period of about six months prior to the accident in question, he was employed as a brakeman or “snapper” in connection with an electric motor used for hauling loaded coal cars out of defendant’s mine. The motor was built in the form of a low four wheeled flat car, with a steel cased body. At one end of the car was a seat for the motorman, and at the other was a hand rail for the use of the brakeman in getting on or off the motor. No provision was made for getting on at the side of the machine, and it was manifestly dangerous to attempt to mount at the side when the car was in motion. The side wheels were about three feet apart, and between them on each side, arranged to work against each wheel, were brake shoes, connected by a short horizontal brake rod, located about eight inches above the track. After the coal cars were loaded in the mine, they were drawn by the motor over a main track towards a “tipple” which consisted of an inclined plane, up ivhich the cars were drawn to be emptied. As the motor approached the tipple it was disconnected from the loaded cars by the brakeman.and was switched upon a siding. The switch was then closfed and the cars were allowed to run ahead on the main track towards the tipple. It was the duty of Vilsock, Jr., as brakeman, to aid in stopping the cars after they had passed the switch. It appears that in the regular course
It is further contended that plaintiff’s injuries were directly caused by reason of his foot striking a lump of coal lying near the track, and that defendant was negligent in permitting the coal to remain there. But the lump of coal which caused the accident was in plain view and plaintiff admitted he saw it there when hé got on the car, and he testified further that the same lump of coal was there two or three weeks before the accident. In view of this testimony he must be held to have voluntarily assumed the risk of coming in contact with it.
It is argued, however, that since plaintiff had complained to the foreman of the presence of the coal, and the latter had promised to remove it, plaintiff was justified in continuing his work and that he did so in reliance upon such promise. Had he been performing his duties in the only manner in which they could reasonably be performed, there would be some force in this argument. But there is no evidence that it was necessary for plaintiff, in the proper performance of his duties, to ride on the side of the moving motor. On the contrary,, plaintiff could easily have walked the short distance to the siding switch, and, according to the testimony of one of his witnesses, the snapper often did so and was at the switch ahead of the motor and waiting for it. It thus appeared there Avas a safe and efficient method of doing the work, and plaintiff cannot be permitted to set .up the alleged promise of defendant to remove the coal, as an excuse for continuing the dangerous practice of jumping upon the side of the motor and riding there. “Where two ways of discharging the service are apparent to an employee, one dangerous and the other safe or reasonably so, the employee must select the latter whether or not it is the less convenient to him; if he chooses the former and the danger is such that a reasonably prudent man would not incur the risk under the same circumstances, he is guilty of such negligence as will bar a recovery ah
Plaintiff unnecessarily put himself in a position which he knetv to be dangerous. The evidence clearly shows that he brought his misfortune upon himself, by his reckless disregard of his own safety in mounting the moving motor at the side, and in attempting to ride thereon while it was operating under conditions with which the record shows he was entirely familiar. \
The first, second and third assignments of error are sustained, and the judgments are reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.