Campbell v. Pennsylvania R. R.

Opinion by

Mb. Justice Stebbett :

It clearly appears from the testimony that the immediate cause of the unfortunate accident which befell plaintiff was the negligence of the brakeman in recklessly undertaking to drop in, on the track where plaintiff was working, a greater number of cars than he was able to control without assistance. The brakeman and plaintiff were engaged in different branches of the same general service, but in the discharge of their respective duties, they were brought in such close proximity to each other that the negligence of the former in carelessly dropping in cars necessa- . rily endangered the safety of the latter. They were, therefore, in the proper sense of the term, fellow servants of the defendant company; and nothing is better settled than that for an injury caused by a fellow servant, without more, there can be no recovery. But, it is contended, the company was also negligent in not providing a safe and suitable place for doing the work in which plaintiff ivas engaged, and that his injury resulted therefrom. It is undoubtedly the duty of the employer to furnish his. employees with such means and appliances as are suitable for the work in which they are employed, and at the same time reasonably necessary for their safety. In the absence of proof to-the contrary, the presumption is that he has discharged his duty in that regard. On the other hand, the employee impliedly assumes all such risks, arising from his employment, as he knows, or, in the exercise of reasonable prudence, ought to know, are incident to such employment. There can be no recovery against the employer for injuries arising from patent risks which the employee has knowingly and voluntarily assumed. The testimony conclusively shows that plaintiff was fully cognizant of the danger to which he was exposed, from negligently dropping in cars on the tracks where he was from time to time at work, and the precautions that were taken to avert such danger. He was. as fully aware of all this as the company itself, and knew that his safety depended on the care that ivas exercised by his fellow employees.

But aside from this, plaintiff was not entitled to recover without proving affirmatively that the company neglected the duty of providing a reasonably safe place in which to do the work he was ■employed to perform. It is contended by defendant that this was not done; that assuming plaintiff’s testimony to be true and conceding the correctness of every inference of fact which the jury might have legitimately drawn therefrom, the evidence was insufficient to have warranted them in finding that the company ■defendant was guilty of the negligence complained of, and that plaintiff’s injury resulted therefrom. An examination of all the testimony has led us to the conclusion that this position is well taken, and that there was no error in withdrawing the case from the jury and entering judgment of nonsuit.

Judgment affirmed. ........