Derr v. Lehigh Valley R. R. , 158 Pa. 365 ( 1893 )

Opinion by

Mb,. Justice McCollum,

Conrad Derr, a locomotive engineer, died on the 15th of March, 1888, from an injury he received the preceding day while in the service of the Lehigh Yalley Railroad Company. His widow and children, alleging that his death was due to the negligence of the defendant company, brought this action to recover compensation for their loss. It was shown on the trial that the injury was received in a cut on the Easton and Amboy division between Three Bridges and Neshanic in New Jersey, and that the death as a result of the injury occurred in North ampton county, Pa. It appears to have been conceded that in order to recover in this suit it was necessary to show an act of negligence in Pennsylvania, which was the proximate cause of the injury received in New Jersey. The learned judge of the court below being unable to discover such negligence in the testimony submitted in support of the action, entered a compulsory nonsuit, and from his denial of the motion to set it aside this appeal was taken.

A considerable portion of the argument contained in the appellant’s paper book is devoted to a discussion of the question of jurisdiction. It assumes that the deceased was sent out upon the road on the 14th of March without sufficient information concerning the obstructions in his path and the work he was to do, and that the failure of the company to give him such information before he left Easton was the proximate cause of the injury which resulted in his death. It will thus be seen that the negligence complained of was an omission of duty in Pennsylvania which, it is claimed, was the sole cause of the accident in New Jersey. The principle settled in Usher v. Railroad Co., 126 Pa. 206, is not disputed. It that case the negligence, the injury and the death were in New Jersey, and the right of action for the benefit of the widow and next of kin was given b3r the New Jersey statute to the personal representatives of the deceased. A suit to enforce this right was brought in Pennsylvania by the widow for the benefit of herself and child, and it was held that as the right was statutory it must be asserted in the name of the persons to whom it was given. But Usher v. Railroad Co. is not decisive of the question raised in this case, if the appellant’s contention in respect to the negligence and the proximate cause of the injury is well founded. It must be remembered, however, that unless a negligent act or omission in Pennsylvania, which was directly responsible for the injury received in New Jersey, is shown by the evidence, there is no question of jurisdiction to be considered. If the evidence is insufficient to warrant an inference of such negligence, the non-suit, on the authority of Usher v. Railroad Co., supra, must be sustained.

We turn then to the testimony submitted by the appellant to discover, if we can, what negligent act or omission of duty the defendant company is chargeable with in connection with this unfortunate accident, and, if such act or omission be found, to ascertain where it occurred. It seems that on the 13th of March, 1888, Donnelly, the superintendent of the New Jersey division, telegraphed from New Market to Kinsey, the master mechanic at Easton, that he would be glad to have all the men that could be spared “ to help open the road; ” that it would be necessary to shovel all the cuts between Phillipsburg and New Market, and that it might be several days before the road could be opened. He also said, in his telegram, that the men “ should be sent out with provisions enough for two days at least, and have four engines coupled together, two turned each way, with jacks and blocking,” etc. In compliance with this request, or order, a train was made up the next morning consisting of four engines and two tool cars, and having upon it four conductors, four engineers, four firemen and two hundred laborers. It also carried provisions for two days, and shovels and other appliances suitable for the work of clearing the tracks of snow and other obstructions. It does not admit of reasonable doubt that every man on this train knew that the road was so blocked by snow drifts that the regular passenger and freight trains could not be moved over it, and that his train was organized for the express purpose of opening the road for them by removing tbe snow from the tracks. The manner in which the train was made up, equipped and manned was in itself notice of the purpose for which it was sent out, of the obstructions to be met and overcome, and of the kind of work to be done by the men upon it. In addition to the notice thus conveyed, we learn from the evidence that Isaac Pixley, who was Derr’s fireman at the time of the accident, was directed to go out “ with three other engines and open the road; ” that Charles Kleckner, who was the engineer on the locomotive next to Derr’s, received orders to “ proceed to Phillipsburg aud help clear the snow,” and that William Laros, one of the conductors, was ordered “to report and go out with the snow trains.” We learn, too, that, while at Phillipsburg, the men in charge of the train consulted as to the order in which the engines should move, and “ came to the conclusion that it would be better to put the heavier engines on the lead on account of getting through the snow.” In short a careful study of the whole testimony forces the conviction that none'knew better than the trainmen the condition of the road, the nature of the work on which they entered and the dangers incident to it. Most of them had been in the service of the defendant company many years, and were familiar with every part of the road on which their train was running at the time of the accident. They knew where all the cuts were, and from their experience and observation in railroading were aware that the greatest obstructions created by the snow storm would be found in them. It may be conceded that they did not know the exact location and size of every snow drift they would have to remove or cut a way through in opening the road. This was information which ’ could only be obtained in the prosecution of the work for which they were sent out. All that we have said in reference to the knowledge of the trainmen generally, is especially applicable to Derr, who was an engineer on the Easton and Amboy division of the road for four years. It will thus be seen that the risks involved in the work of opening the road were intelligently assumed by him. In order to recover in this action it was necessary for the appellant to show negligence on the part of the defendant company in connection with this work, and as she has failed to submit evidence which warrants an inference of such negligence, the nonsuit must be sustained.

The specifications of error are overruled.

Judgment affirmed.