Rehm v. Pennsylvania Railroad , 164 Pa. 91 ( 1894 )

Opinion by

Me. Justice Fell,

Upon the trial there was no evidence of negligence upon the part of the Pennsylvania Railroad Company. It delivered a car loaded with, coal at the works of Wm. L. Scott & Co. One brake of the car was missing and the other defective. On one end of the car was written with chalk in large plain letters : “No brake,” and on the other: “Bad brake.” There was no evidence that this car had been started on its journe)*- in a defective condition, nor as to when or where the injury to the brakes occurred. It was delivered on the siding, and its defects distinctly marked in order that any one who handled it might have notice of them. The person injured was not in the company’s employ, and had no relations with it. The ground of recovery against it as set out in the plaintiff’s statement was the failure to furnish an employee with safe machinery, and the testimony wholly failed to establish the allegation.

A somewhat different question arose as to the liability of Scott & Co., and this also we think was properly decided by the learned judge. Scott & Co. were engaged in shipping coal. To facilitate its loading into vessels they had built a trestle some forty feet high and eight hundred feet long, with pockets for the reception of coal beneath. The loaded cars received from different railroads were drawn up one end of this trestle and unloaded into the pockets. The top of the trestle, on which the tracks were laid, had a slight incline so that the cars passed down by gravity, and their speed was regulated by means of the brakes. The car in question was drawn to the top and started down the incline. Its motion could not be stopped because of the defective brakes, and it ran into the car in which the plaintiff’s husband was engaged in shoveling coal, causing the injuries which resulted in his death.

The cars were the property of the railroad company that delivered the coal. They were not a part of the machinery of' the defendants, used in their business. As was said by the learned judge in granting the motion for a nonsuit, they were the things worked upon, not the things worked with.

The machinery and appliances of Scott & Co. were the stationary engines and cables and the trestle with its tracks and bins. By means of these the cars received were handled and unloaded. The duty of making them reasonably safe and suitable, and of so maintaining them, was primary and imperative, and one which could not be delegated by an employer except at his peril.

This duty however did not extend to the thing received and to be handled by means of their machinery and appliances. They did not furnish that; it was not a part of their plant. It •was the thing to be operated upon by their employees with the aid of their machinery. It was manifestly negligent to place the car in its defective condition on the trestle, but the negligence was that of a fellow servant, for which the employers were not liable.

It was said in Anderson v. Oliver, 138 Pa. 156 : “A laborer at a furnace, who, while unloading a railroad car in the course of his employment, was injured in consequence of a defective brake thereon, the car being owned by a railroad company and having been delivered by it to the furnace in a defective condition, cannot recover damages for such injury from his employer.”

To the same effect are the decisions in Mixter v. Imperial Coal Co., 152 Pa. 395, and McMullen v. Carnegie, 158 Pa. 518.

The judgment is affirmed.