Ortlip v. Philadelphia & West Chester Traction Co. , 198 Pa. 586 ( 1901 )

Opinion by

Mb. Justice Fell,

The plaintiff, while in the employ of the defendant as a motorman on a single track electric railway, was injured in a collision between his car and a car owned and operated by contractors who were engaged in ballasting the roadbed with broken stones. The road was operated by a block system with electric signals, which were set by the men in charge of the cars. The collision resulted from the failure of the contractor’s workmen properly to adjust a signal after entering a block. The defendant operated its road before the ballasting was finished, and its passenger cars and the contractor’s construction cars were in use at the same time, but the movement of all cars was expressly subject to the printed rules of the company, and to the orders of its superintendent. One of these rules allowed the running of the contractor’s cars in the same block as passenger cars subject to certain restrictions as to notice, the distance cars should be kept apart, allowing passenger cars the right of way, and the operation of signals by those in charge of the forward car. •

It is conceded by the appellant that the plaintiff and those whose negligence caused the accident were not fellow workmen. Its denial of liability is based on three grounds. (1) that it is not responsible for the negligence of independent contractors ; (2) that it was not negligent in entrusting the operation of its signals to the employees of its contractors; (8) that the plaintiff, by remaining in its service with knowledge of the manner in which the signals were operated, assumed the risk of injury from that cause.

It is unnecessary to determine whether the contract was an independent one, or whether the company could absolve itself from liability in regard to so vital a matter as the operation of its signals, by delegating it to its contractors. The contract related to the construction of the roadbed, and if independent it was so only as to the doing of that work; the operation of the signals was not as an independent matter entrusted to any one, but remained in the charge of the company. The use of the tracks was under the direct control of the company’s superintendent, who retained and exercised the right to direct the management of the cars and signals. In all matters incident to the use of the track, the contractors and their workmen represented the will of the company, and its responsibility remained.

The plaintiff could not be charged with contributory negligence in remaining in the service of the company after the contractors were allowed to use its track. The ordinary risk of his employment was slightly increased, as it would have been if more passenger cars had been used, but the additional use of the track presented no obvious danger.

The judgment is affirmed.