Hartman v. Western Maryland Railway Co. , 246 Pa. 460 ( 1914 )

Opinion by

Mr. Justice Brown,

Ivan R. Hartman, the appellee, was employed as a brakeman by the Western Maryland Railway Company, engaged in interstate commerce. On November 7, 1912, he went to Gettysburg, this State, under orders to report for duty on a freight train, which left that place before daybreak on the following morning for Port Covington, Maryland. The train was a long one, drawn by two locomotives. Before it left Gettysburg the appellee and another brakeman went into the caboose with the consent of the conductor, who told them they would have to leave it and go forward before the train reached Hanover. As it approached the town of New Oxford, not far from Hanover, shortly before three o’clock in the morning, the appellee and the other brakeman left the caboose and went forward, crossing over the tops of box cars. While doing so the appellee fell or was jolted from the top of one of them, and, falling between two of them, was so severely injured that it was necessary to amputate his right foot. In this action, brought under the Act of Congress of April 22, 1908, he bases his right to recover on what he alleges was the negligence of the engineer of the train in running it at an excessive rate of speed and in suddenly putting on the brakes while it was passing around a curve, causing the jolt or jar which threw him to the ground. The case went to the jury on these two allegations of negligence, and a verdict was returned for the plaintiff, upon which judgment was duly entered. "

One of the rules of the defendant company, offered in evidence by the plaintiff, fixed the maximum speed of a freight train such as he was on at twenty miles an hour, and in the general notice to all of the company’s employees, also offered in evidence, there is the following: “Obedience to the rules is essential to the safety of passengers and employees and the protection of property.” The plaintiff testified that the train was running at the rate of twenty-five or thirty miles an hour when it reached a curve, at which point the engineer, without any warning, suddenly put on the brakes and then instantly released them, so jarring the train that he was jolted from it. This testimony was sufficient to send the case to the jury under the federal statute, for, if believed, it showed the negligent operation of the train by the engineer, in violation of one of the express rules of the company, to have been the direct cause of the injuries sustained by the appellee. It is, however, earnestly insisted by learned counsel for appellant that the appellee had not shown himself qualified to testify to the rate of the train’s speed, and that even if he had done so, in view of the positive contradiction of his testimony by a number of competent witnesses called by the defendant, who testified advisedly as to the rate of speed at which the train was running, a verdict ought to have been directed for the defendant. Why this could not have been done appears in the brief, but clear, opinion of the learned president judge of the court below, denying a new trial and overruling the motion for judgment non obstante veredicto, and on that opinion the second, third and fourth assignments are dismissed.

The first assignment-complains of the failure of the court to instruct the jury as to the weight to be given to the uncorroborated testimony of the plaintiff, in view of its positive contradiction by all of the witnesses called by the defendant. This assignment does not call for a reversal of the judgment. In his charge to the jury the learned trial judge specifically referred to the fact that the testimony of the plaintiff as to the rate of the train’s speed was but an expression of his own individual judgment, in which, he was not corroborated by any one; and as against his testimony the attention of the jury was called to that of the two engineers, the fireman and the other brakeman, that the rate of speed was less than nine miles an hour. If the appellant wished for fuller instructions as to the weight to be given to the testimony of the plaintiff, it should have asked for them.

The second question suggested by the appellant in the statement of questions involved is the plaintiff’s assumption of the risk of being jolted from the top of a car while the train was in motion. We do not regard this as a question before us, in. view of the following answer by the court to the appellant’s first point: “The plaintiff having accepted the hazardous and dangerous employment of a brakeman on the defendant’s freight train, he is at law held to have assumed all the obvious and open risks of his employment in the ordinary operation of the train on which he worked as brakeman, and also of such risks as to which he had been informed. Among such risk of injury would be those ordinarily and obviously existing where a brakeman in the discharge of his usual duties as such, is required to walk over the tops of moving cars.”

The four assignments of error are overruled and the judgment is affirmed.