Nadazny v. Philadelphia & Reading Railway Co.

Opinion by

Mr. Justice Walling,

This action of trespass is for the death of plaintiff’s husband, caused, it is averred, by defendant’s negligence. Defendant has a system of tracks at Manayunk by which it serves certain mills and factories there located, and among others a plant of the American Bridge Company. Such service is performed by what is called a “shifting train” which places and removes cars, loaded or empty, as required. Under and between certain of the tracks the bridge company has a coal bin which is supplied with coal from the cars placed on the tracks for that purpose. On the morning of August 2,1916, the shifting train had left coal cars there for the bridge company to unload, and the deceased met his death while employed at that work. This appeal is by plaintiff from the judgment of the trial court refusing to take off a compulsory nonsuit.

With some hesitation we have reached the conclusion that such action was error. The evidence, as developed, was for a jury to pass upon, for it tended to prove the deceased was killed by defendant’s- shifting train strik-. ing violently against the car in which he was at work, so that he fell or was thrown upon the track and crushed by the car or engine; and also that the conductor of the shifting train had notice before the accident that a man was at woi*k in the car. The case seems to turn largely upon that fact, and the evidence tending to show such notice in time to have prevented the accident, while not clear, was for the jury. Pierson, the bridge company’s foreman, testified that he told the conductor to “be careful pushing down there — there is a man working at the bin”; also that the engine attached to a string of cars was then pushing down. His evidence seems to indicate that this notice was given about 12:35 p. m.; for he says he left the office in ten or fifteen minutes and went to the yard where he was informed of the accident, which, as he recalls, occurred between 12:45 and 12:55. Another witness fixed the time of the accident somewhat later. It was the uniform practice to have the cars unloaded before noon, and, as this accident happened about one o’clock, unless the crew of the shifting train had notice that work was still being done in the car, they were not responsible for bumping against it (Cunningham v. Phila. & R. Ry. Co., 249 Pa. 134).

While the deceased was in the employ of the bridge company he was, so far as appears, in the proper performance of his work, and it was defendant’s duty to use ordinary care, under the circumstances, so as not to injure him or others lawfully at work upon and about the premises: Diehl v. Lehigh V. R. R. Co., 254 Pa. 404; Magnuson v. Penna. R. R. Co., 242 Pa. 422; Rheingans v. N. Y. C. & St. L. R. R. Co., 236 Pa. 476; Boggess v. R. R. Co., 234 Pa. 379; Engle v. Penna. R. R. Co, 234 Pa. 305.

The evidence is that the deceased was working in the car where he could not see the approaching train and nothing appears to charge him with contributory negligence. In the absence of proof to the contrary, the presumption is that he used due care: Schmidt v. Phila. & R. Ry. Co., 244 Pa. 205; Woodruff v. Lehigh V. R. R. Co., 231 Pa. 640. The deceased was alone and no one saw him at the moment of accident, so it does not appear just how. he was thrown to the track, but the lack of proof as to that will not excuse the defendant if otherwise liable. At this stage of the case we must assume the truth of plaintiff’s evidence and any inferences that might be drawn therefrom: Harper v. Phila. R. T. Co., 258 Pa. 282. As the case may present a different aspect when all the facts are developed, we do not care at this time to further discuss the evidence.

The assignment of error is sustained and the judgment reversed with a procedendo'.