Philad. & R. R. v. Huber , 128 Pa. 63 ( 1889 )

Opinion,

Mr. Justice Green:

If there had been proof on the trial that Huber was acquainted with the condition of the brake on the car upon which the accident occurred, by having been on it and used the brake at times prior to the accident, it would not have been possible to sustain the verdict. All of the witnesses, and almost the whole of them were witnesses for the plaintiff, who testified in regard to the brake, said it was manifestly defective, and several of them said it was unsafe and dangerous to use it. They also said the defect could be seen at once upon looking at it from above, or attempting to handle it; and any brakeman who was certainly acquainted with it or had had sufficient opportunity to become acquainted with it, and then used it, would have been guilty of contributory negligence if an injury had resulted from its use. But in this case there is no evidence showing that Huber had ever seen the car or the brake before the time of the accident, and whatever knowledge he had of it must have been acquired during the brief period he was on the car before he fell off. It was his duty to brake cars at this particular place, and hundreds of cars were brought there every day for inspection and weighing. The whole time occupied in shifting a car on the scales was very short, indeed, and the brakeman was obliged to be actively engaged from the moment he boarded the car until it was weighed.

In this particular instance the deceased was engaged in braking a little train consisting of one single and two double cars loaded with coal. He was on the front end of the first double ear, the single car being ahead. He had uncoupled the single car, and, as the testimony indicates, had hold of the brake at the front end of the car he was on. In this situation he fell and was run over by the car and killed. No one saw him in the act of falling, but he was at his post and had one arm around the lever, and was holding or working the brake, the moment before he fell. He was seen in that attitude at that time. The whole time from the commencement of the movement of the cars towards the scales, to the occurrence of the accident, was but two or three minutes; and in that very brief space and whilst engaged with the uncoupling of the cars and their movement, he had to become acquainted with the brake and either use it or abstain from -using it because of its unsafe condition. There was evidence that it could be used with safety if only a moderate application of the brake was made, but that the lever by which the brake was worked had a tendency to slip up off the shaft, if a strong pressure of the brakes on the car wheels was required. We think it would be subjecting the brakeman to a too rigid measure of responsibility to say, as a matter of law, that in so very short an interval, and with his attention necessarily given to the uncoupling of the cars and also to the regulation of their movement, he was bound to acquire a knowledge of the defect in the brake and to abstain from its use.

The defect consisted of a too large opening in the lever for the head of the brake shaft to enter, so that the lever would slip without holding the shaft, when a hard pressure was applied. There was evidence that the shaft could be held, if only a moderate pressure was applied. The learned court below very fairly and correctly left it to the jury to say whether the deceased knew of the unsafe condition of the brake, and used it notwithstanding such knowledge, and charged them that if he did there could be no recovery. While the evidence is without contradiction that the brake was defective, and the defect could be discovered as soon as an attempt was made to use it, yet, considering the exceedingly limited opportunity which the brakeman had of becoming acquainted with it, it was proper to leave that question to the jury for decision. It is entirely possible, and is consistent with the testimony, that the first pressure applied was moderate, and that it was only when this was increased that the dangerous character of the defect became manifest, but that at the same instant the lever slipped and the brakeman lost his hold and fell.

The only other serious question in the cause was, whether there was sufficient testimony to leave to the jury the question whether the deceased fell from the car in consequence of the defect in the brake. There was no direct and positive testimony to this effect. No person saw-him fall while in the act of handling the brake, but that might be because no person saw the actual falling. But the evidence of at least one witness, Zimmerman, proved that he was seen with one arm around the brake-lever, and was pulling on the brake immediately before he fell. Other witnesses saw him standing on the end of the car where the brake was, also just before the accident, but do not speak of seeing him have hold of the brake. We think the testimony of Zimmerman was enough to carry the case to the jury and to sustain the verdict. The testimony of the witnesses who saw the deceased at his post immediately before he fell, is corroborative in its character, and as several of them describe how a fall might very easily result from the slipping of the lever in the effort to work the brake, it is scarcely permissible for a court to say that a jury might not infer that the accident occurred in that way.

Nor can it be said that this was a case in which the employee was better acquainted with the defect than the employer, and should have given information of it and abstained from using it. The evidence fails entirely to show such a state of facts. If it had shown them, we would not hesitate to apply the rule of contributory negligence. But here the testimony was very abundant that the company enforced a system of daily inspection of all cars at the place of this accident, and if this had been thorough, the defect in this brake should have been discovered. As to the deceased, there is no evidence that he ever handled or even saw this brake until he attempted to use it on this occasion. In such circumstances it would not be proper to visit him with the consequences of a knowledge of the defect, and a voluntary use of the brake notwithstanding such knowledge. The question of Huber’s knowledge of the condition of the brake and of the manner in which he used it, whether negligently or otherwise, was very carefully and correctly left to the jury, and by the verdict it has been found that he was not negligent.

We cannot say from a reading of all the testimony that it so conclusively appears he was negligent as to convict the court of error in submitting that question to the jury. It is one thing for a number of witnesses to say in court, with the brake before them and ample opportunity to examine the condition of the lever at the place where the shaft entered it, that the opening for the shaft in the lever was too large, and that the lever might slip off the shaft when it was used to apply the brakes; but it is quite a different thing for a brakeman who jumps on the car which is immediately started to be shifted, who must at once uncouple the car in front of him and then regulate the movement of the car he is on by applying the brakes, to stop to examine the condition of the machinery of the brake before he uses it, without his attention being called to any defect. In point of fact the car had almost reached its destination on the scales when Huber fell off, so that it would seem he did use the brake successfully for much the larger part of the distance. It is not for a court to say as matter of law, in such circumstances, that the brakeman was necessarily guilty of negligence in not discovering the defect in the machinery of the brake and ceasing to use it. That was the proper function of the jury.

Judgment affirmed.