Herbstritt v. Lackawanna Lumber Co. ( 1905 )

Opinion by

Mb. Justice Potteb,

The defendant company owned and operated a private railroad and several switches, which it used chiefly for handling its own logs and bark. The plaintiff’s husband, Andrew J. Herbstritt, was on January 21, 1902, in the employ of the Pennsylvania Stave Company, and was engaged in scaling logs which were being loaded upon railroad cars, standing on a tramway of the defendant.

Six box cars, which were not the property of the defendant, but belonged to railroad companies, were standing on the same tramway, some distance up the grade, from the point where Mr. Herbstritt was at work. These cars were being loaded by the Bayliss Pulp Company, or its employees. In some manner, not shown by the evidence, these cars broke away and ran down the grade, and ran into the cars upon which Mr. Herbstritt was standing, and he was killed. His widow afterwards brought this suit to recover damages, for causing his death.

The declaration as first filed, alleged that Herbstritt was employed by the defendant company; but the evidence at the first trial showed that this was a mistake and that he was employed by the stave company. A nonsuit was entered, which-was subsequently taken off, and an amendment to the declaration was allowed,, charging “ that the said Andrew J. Herbstritt, husband of the plaintiff, was employed by the Pennsylvania Stave Company to scale logs upon' the premises of the defendant. In pursuance of such employment, and with the consent of the defendant company, said Andrew J. Herbstritt, was engaged in the business of scaling'logs.”

Objection was made to the allowance of the amendment, upon the ground that it materially changed the cause of action, after the bar of the statute of limitations had interposed. The objection was overruled, and this action of the court is made the subject of the first assignment of error. We have not been convinced that the court was wrong in this respect. The real cause of action as alleged in the first declaration, was the killing of the plaintiff’s husband, by the negligence of the defendant company in permitting the loaded cars to descend the steep grade and strike the cars upon which Andrew Herbstritt was working, with such force as to cause his death. This was the real cause of complaint, and it remained the same under both declarations. The measure of responsibility would of course vary, in accordance with the fact of Mr. Herbstritt being an employee of the defendant or not: but in any event the cause of action was the alleged negligence in permitting the escape of the loaded cars, and the consequent disastrous collision.

The serious question in the case is raised by the third assignment which alleges error in the refusal of the defendant’s fifteenth point, which was as follows: “ Fifteenth. The uncontradicted evidence in this case being that the cars that caused the injury were in the possession and use of the pulp company and its servants and employees from Sunday night until Tuesday, the day of the accident, breaks the causal connection between any act of the defendant company and the accident, and thereby relieves the defendant company from any liability.”

The same question is also raised by the seventh assignment, which complains of the refusal of the defendant’s eighth point, as follows: “ Eighth. The cars, the breaking away of which caused the death of the plaintiff’s husband, not being in the possession of the defendant, not' being used by the defendant at the time, but being loaded by strangers to the case, for their own use, the defendant cannot be made to answer for the result of the accident.”

It appears clearly from the evidence that the six cars which broke loose and caused the death of the plaintiff’s husband, were sent in at the request of the Bayliss Pulp Company, or of persons who were employed by them or who contracted with them to supply wood for the purposes of making pulp. The defendant company switched the cars in with its engine, and by its employees, set the brakes on the cars and left them at the point designated by the pulp company. As there was considerable grade at the place where the cars were left standing, they did not depend upon the holding power of the brakes alone, but, in addition, the cars were propped with short pieces of wood placed, against the end- and at the sides, braced between the axle and the ties. The cars in question were switched in on Sunday, and left to be loaded for the pulp company, and so remained standing upon the tracks until the following Tuesday morning.

It appears from the testimony that a Mr. Fitzgerald had the contract to furnish this wood to the pulp company. He in turn contracted with one, Comstock, to load the wood at so much per cord. Mr. Hill, who was foreman for Fitzgerald, sent the order for the cars to the defendant company, and he testifies that they were delivered on Sunday afternoon. Pie says that the next morning after the cars were placed on the switch, he took a man with him and propped one side, while his companion did the other side, of the six cars that were standing there. This shows that he was not depending upon the props already placed in position by the employees of the defendant company when the empty cars were left standing upon the switch. He then ordered the cars to be loaded full of wood.

It is very clear from the testimony that the defendant company had nothing whatever to do with the control or care of these cars after they were switched in. During the time they were being loaded, they were in the hands and under the control of the contractors who were loading them with wood. It does not appear what caused the cars to start. But no reasonable cause Avas suggested, other than that of the additional Aveight caused by the loading of the cars. It might have been that the brakes were loosened by some one; but whether or not this was the case, does not appear. The brakes and the props Avere sufficient to hold the cars in place while empty, and apparently for some little time after they were loaded. It does clearly appear that when the pulp company took possession of the cars and began loading them it assumed the responsibility of holding the cars in place. This Avas shown by the fact that the first step taken by Mr. Hill when he began the operation of loading, Avas to place additional props under and upon both sides of the cars.

One of the witnesses, Mr. Peck, testified that loading the cars had an effect upon the brakes, and that, as the weight increased upon the car, it caused the shoes to settle away from the wheels, and loosened them, tie said that it was customary in loading such cars, to keep tightening up the brakes, and that this Avas done by the jobber, or the man A¡vho ordered the cars and under Avhose direction they were being loaded. It would be most unreasonable to hold the defendant company responsible for the management of the cars during the time they Avere in the possession of the employees of the pulp company or its contractors, while being loaded. The responsibility for permitting the cars to escape must be placed upon the men Avho were in control of them at the time. Clearly these men were not the employees of the defendant company. It is no less clear that the direct and proximate cause of the accident was the breaking away of the cars. In the argument of counsel for the appellee, considerable stress was placed upon the contention that additional safety switches should have been placed by the defendant company along the tracks, in anticipation of such an accident as this. But, under any circumstances, the absence of a safety switch was not the pri mary or proximate cause of the accident. The use of a safety switch would be but the interposition of an heroic. remedy whereby the runaway cars, after having started on their downward career, might be derailed and wrecked. The safety switch would not guard in any way men or property, if any there were on the runaway cars, although if effective it would prevent collision with anything below the switch. It was also shown by the testimony that the use of additional safety switches would tend to make more dangerous the ordinary operation of the cars over the tramway, and that, as a rule, they were only placed at the lower end of the branch track, so as to protect the main line.

A careful examination of the evidence has satisfied us that the defendant’s eighth and fifteenth points should have been affirmed. So also should the sixteenth point, which asked for binding instructions in its favor.

The second, third and seventh assignments of error are sustained, and the judgment is reversed.