Moules v. Del. & H. Canal Co.

Opinion,

Mr. Justice Mitchell :

We fail to find in this case any evidence of defendants negligence, nor is it easy to ascertain with precision just what negligence is charged. The learned judge put it to the jury entirely on the method of managing the trips at the head of the plane, — whether it was such as furnished reasonable protection to the trainmen; while the argument of appellee here rests mainly on the action of Ryan in stopping Hoyle, when about to go back for the purposé, as he alleged, of notifying Moules. Appellee also argues negligence from the absence of a headman on that day; but as the evidence showed without contradiction that it was not usual to have a headman, and that when he was there it was not to give notice to train runners, but for entirely different duties, the learned judge below properly excluded this question from the consideration of the jury, and we need not discuss it here.

There was no evidence on which the jury could properly find that the method of managing the trips was negligent. We have had occasion several times lately to say that the test of liability of an employer to an employee is negligence, not danger, but here there was no evidence even of danger to a man of reasonable prudence. What Moules had to do was to unhook the sling, ring the bell to notify the engineer, and get on the car again so as to control the brake, if necessary. During this operation, the cars were moving, as Hoyle, the plaintiff’s mainstay and certainly a friendly witness, says, “ a little faster than a common man could walk,” and “ there was no difficulty in getting on or off.” This method had been followed for years, without accident, and as a part of the business of railroading it certainly could not be said to be inherently dangerous. In this particular case the deceased had been employed at this work seventeen years, and was entirely familiar with it; the other cars with which his collided were in plain sight; both Sohn and Hoyle, who preceded him by a few minutes, had brought their trips up, under the same circumstances, without difficulty; and the uncontradicted evidence on plaintiff’s own part was that, even if the deceased had not seen the cars until close at hand, there was no difficulty in jumping off so as to avoid personal injury from the collision. To allow a jury, under these circumstances, to find that the method of operation was negligent, as well as dangerous, would be not only allowing them, as said in Titus v. Railroad Co., 136 Pa. 618, to dictate the customs and control the business of the community, but to do so without evidence.

But was Ryan negligent in stopping Hoyle on his way back to notify Moules? Hoyle says he did not inform Ryan of his intention in going back. There was therefore no express notice to Ryan of Hoyle’s intention. Nor could notice be implied from custom, for no custom was proved. The only evidence bearing on that point was given by Hoyle in rebuttal. It was not properly rebuttal, but the very essence of plaintiff’s case; but, taking it as it was given, it amounts to no more than evidence of the witness’s individual habit, not adopted by other Lain runners and not known to Ryan. Nor, lastly, could any obligation upon Ryan in regard to notice to Moules arise from the danger of the situation. The matter of danger has already been discussed. It was usual on stormy days to stop the cars at that point and double up the trains. Moules knew the custom, for he had been engaged seventeen years in this work. Whether or not that day was one calling for doubling up, was a matter to be determined by Ryan, and Moules knew this and was bound to be on the lookout accordingly. Even if there was no actual necessity for doubling, and Ryan made an error of judgment in ordering it, of which there is no evidence whatever, it would not have been negligence. The honest exercise of his judgment by a competent employee in the course of his employment, can never be negligence to make the employer liable to a co-employee. This branch of the case has been discussed on the concession that the defendant would be liable for Ryan’s negligence. If it were necessary, that point might at least be questioned.

On the whole case there was no negligence proved, and defendant’s seventh point should have been affirmed.

Judgment reversed.