McGregor v. Pennsylvania Railroad ( 1905 )

Opinion by

Mb. Justice Elkin,

No matter how distressing the accident, or unfortunate the circumstances surrounding the death of the decedent, who was the'husband of the plaintiff and the employee of the appellant, there can be no recovery of damages unless the death was the result of negligence on the part of the defendant company. The learned trial judge entertained some doubt about the liability of the defendant in this action, which is evidenced by the reservation of the following questions, with the right to enter judgment non obstante veredicto: “ First, is there any evidence of negligence on the part of the defendant company which would warrant the judgment in favor of the plaintiff. Second, under the undisputed evidence, was not the negligence of either Mr. Allaway, the switchman, or Mr. Chase, the engineer, who were fellow servants of the decedent, proximately the cause of the accident. Third, was not the cause of the accident one of the risks the decedent assumed when he engaged as brakeman dropping down trains through the yard of the Pennsylvania Railroad in Altoona.”

In passing upon the reserved questions, the trial judge, among other things, said: “ But even assuming that said engineer and said switchman, who were fellow employees of said decedent brakeman, were guilty of negligence, was it not a question for the jury as to whether there was not negligence on the part of the railroad company.”

After a careful consideration of the case, and an exhaustive examination of the testimony, we are of opinion that there was no evidence of negligence by the defendant and that the learned court erred in not so ruling. It is suggested by the court and bjr the learned counsel for appellee that automatic signals should have been provided, but the evidence does not justify such a conclusion. There is nothing in the testimony to show that the system of signals provided by the railroad company, and the appliances for the switching of cars and making up of trains in the yard were not such as were in ordinary use by railroads for such purposes, or that they were dangerous or unsafe.

. .Something has been said about the failure of the defendant company to establish a.system of rules for employees in and about the yard. The testimony in this respect is meager and unsatisfactory, although one of the witnesses said there was a book of rules regulating these matters. It is clear, however, that the testimony produced by the plaintiff was not sufficient to charge the defendant with negligence in not providing proper rules. There was no evidence in the case either as to rules, appliances or signals that would warrant a jury in finding as a fact that the defendant company ivas negligent in any or all of these respects. It follows, therefore, that there was error in submitting the case to the jury, or after submission, in not entering judgment non obstante veredicto in favor of the defendant.

To permit a recovery in this case would impose upon the defendant a standard of care and responsibility beyond that recognized in any of our cases. As was said by Mr. Justice Green in Southside Passenger Ry. Co. v. Trich, 117 Pa. 390: “ To impose such a standard of care as requires, in the ordinary affairs of life, precaution on the part of individuals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal limitations which have yet been declared.” The appellee having failed to show by testimony negligence on the part of the defendant such as would make it liable in damages, there can be no recovery in this case. This view of the law being fatal to the claim of the plaintiff, it is unnecessary to discuss the question of the decedent’s contributory negligence, or whether the accident was the result of the negligence of fellow servants.

Judgment reversed.