Miller v. Northern Central Railway Co.

Opinion by

Mr. Justice Elkin,

Three questions are raised by this appeal: the negligence of the appellee, the contributory negligence of the deceased son, and the application of the act of 1868. The court below entered a nonsuit on the first two grounds, but held that the deceased was not a fellow servant within the meaning of the above-mentioned act. Being of opinion that the case at bar is ruled by Weaver v. P. & R. Ry. Co., 202 Pa. 620, it will not be necessary to consider the other questions raised. In the case cited this court held that where an iron company constructs a siding on its own land on which the cars of a railroad company are to be operated by the employees of the railroad company, an employee of the iron company who is injured by the negligence of the trainmen of the railroad company while he is loading a railroad company’s car on the siding of the iron company, is a fe.llow servant of the trainmen within the meaning of the act of 1868, and cannot recover damages from the railroad company for the injuries sustained.

The facts of the case at bar more strongly favor the appellee here. In that case the injured employee was engaged by the iron company in loading the cars of the railroad company with the manufactured product of the iron company. In the case . at bar the deceased son of appellant was a car patcher, whose duties required him to patch or repair the cars of the railroad company before they were loaded with coal for shipment. It is true as a matter of convenience he was paid by the coal company, but the worlc done was on the property of the railroad company, and was the kind of work ordinarily done by its employees. Under the rule of our cases the injured employee must be considered a fellow servant of the employees of the railroad company under the act of 1868.

The learned counsel for appellant contends that the case at bar comes more nearly within the rule of Spisak v. B. & O. R. R. Co., 152 Pa. 281. With this contention we do not agree. The distinction is manifest. In that case the injured party was a brakeman in the employ of the steel company, which owned and operated its own locomotive for shifting cars while they were being loaded and weighed in the yard of the steel company. When the railroad company shunted the cars on the siding of the steel company its duty ceased until they were loaded and ready to take out. The steel company exercised entire supervision in the operation of the locomotive and the control of the brakeman and others employed in shifting the cars while they were being loaded and weighed. It was during this time the accident occurred through the negligence of an employee of the railroad company. The brakeman who was injured, the yard boss at whose direction the car was moved, the engineer who ran the locomotive, and the other workmen were the employees of the steel company, engaged in the work of that company, and were not performing any duty for the railroad company. Under these circumstances, the court very properly held the injured party was not a fellow servant of the employees of the railroad company under the act of 1868. The facts of the case at bar so clearly distinguish it from that case that no useful purpose can be served by further consideration of them.

Assignments of error overruled and judgment affirmed.