Mulherrin v. Delaware, Lackawanna & Western Railroad

1. The D. railroad company, by agreement, had a right of trackage on the tracks — two running parallel at a distance of seven feet from each other— of the B. company. The plaintiff was a brakeman of the B. company ; his train passed from one track to the other, and in the performance of his duty he left the train and closed the switch, the train passing on some distance into the yard without him. He stopped a few minutes and walked along the track to go to his train, which he might have reached in some other way; whilst so on the track he was struck by an engine of the D. company, going in the same direction, and injured. Held, that he had no right to be on the track ; that being there was contributory negligence per se, and he could not recover from the D. company for the injury. 2. Where a person goes on a track, he cannot recover from'the company except for wanton injury, although the negligence of the company’s agent contributed to the result. 3. Except at crossings, where the public have a right of way, one who steps on a track does so at his peril. 4. The employees of the company whose duty requires them to go on the track, if injured, have no redress against the company; they take the risk upon undertaking the employment. 5. Whilst passing from one point of the road to another, the plaintiff had no higher protection than a stranger. 6. The plaintiff was, within the meaning of the-Act of April 4th 1868, an employee lawfully engaged about the roads, &c., of the D'. company, and therefore entitled only to such right of action as if he had been aii employee of the D. company.

Error to the Court of Common Pleas of Luzerne county: Of January Term 1875, No. 64. This was an action on the case, brought June 25th 1872, by Patrick Mulherrin against the Delaware, Lackawanna and Western Railroad Company. The action was to recover damages for injuries sustained by the plaintiff in consequence of having been struck by an engine of the defendants, whilst he was walking on the track of the Lackawanna and Bloomsburg Railroad. The railroads of the two companies intersected at a point near Scranton. By an agreement between the two companies, datéd April 28th 1863, the defendants had the right to use the Lackawanna and Bloomsburg Railroad for the transportation of coal from the intersection near Scranton to Nanticoke, and to and from all intermediate points. The plaintiff was in the employ of the Lackawanna and Blooms-burg Company, as a brakeman. On the 29th of June 1871, he was walking on one of the tracks of that company within the city of Scranton, when he was struck by an engine of the defendants drawing a heavy train of coal cars, and so severely injured that it was necessary to amputate both his legs. The case was tried October 21st 1874, before Harding, P. J. The evidence showed that whilst 'the defendants’ trains had a right under the agreement to run on the other company’s tracks, yet the running was to be such as not to interfere with the latter company’s regular trains ; in consequence, the defendants! trains did not run on any schedule time, but were running by telegraph and signals. The accident occurred near the crossing of Scranton avenue, which is also intersected by Jackson street, in the part of the city known as Hyde Park. There were two tracks of railroad here; one bound north on which laden cars passed; the other bound south on which usually unladen cars passed; the space between these two tracks was seven feet, and the space between two engines passing on the respective tracks would be about three and a half feet; on the outside of the southern track there is a space where persons can walk without risk; there w-ere below the Scranton avenue crossing two switches to enable trains to pass from the southern to the northern bound track. John Dacy testified.: that he was watchman at. the Scranton avenue crossing, in-the employ of the Lackawanna and Blooms-burg Company; his watchhouse was about four or five feet from the northern bound track; from that place he could see about eighty rods down the track. On the day of the accident witness saw the plaintiff on his train; he jumped off and opened one of the switches, his train went into it, he closed it and the train went on to Scranton so fast that the plaintiff could not again get on the train ; if after a switch is turned the brakeman is wanted, the engine is “ slowed up” for him to get on ; if it leaves him behind, he stays till the engine comes back ; if the train should not come back it would be the duty of the brakeman to join his train. After the plaintiff had turned the switches, he walked to the watch-house and got from witness a match to light his pipe; while standing talking with witness, the plaintiff’s train came out from Scranton, and went into the “ hill switch ;” when plaintiff saw it, he walked from witness about two steps out on the northern bound track; there was then a train coming down from Scranton on the south bound track; w'hen plaintiff stepped on the track he took the direction towards the “ hill switch” toward his train ; near the watchhouse there was a gully that goes across the track at the intersection of the streets; plaintiff stepped on the track around the gully, and walked on toward the “hill stvitch,” still on the north bound track ; the gully where it passed under the track had no covering but the ties; a minute or two after plaintiff left witness, a train came down on the north bound track, the two trains passed the crossing together ; the northern train gave no signal; the southern train did; witness thought the northern train was going fourteen or fifteen miles an hour; this train belonged to the defendants, and consisted of a heavy load of coal cars; a second after the northern bound train passed, witness was told that a man had been run over ; he went out and found plaintiff lying in a gully on his back, with feet and legs “ mashed;” he had been pulled along the track, thirteen or fourteen cars had gone over him, pulling him until he fell into the gully. On cross-examination witness said, that plaintiff continued to walk on the track as long as he saw him. There was no way for plaintiff to get to his' train other than walking between the tracks and in the gutter outside of the south bound track, except “ he went by the turnpike and went down again, but that was a long ways for a man that was working to go iip the turnpike,” it would be safer for a man to.walk on the track when it is empty than between the tracks. Another witness testified: that she was on the south track and met plaintiff walking on the other track towards his engine; the engine on the south track whistled for her to get off the track ; the plaintiff just then passed her, the other engine was coming up, the two trains passed pretty near together; the train on the north track knocked plaintiff down and dragged him. There was no whistle from that engine; the loaded train came very fast; the plaintiff could not see the train. The plaintiff testified that on the morning of the accident his train started to Scranton from Bellevue switch, which is south of Scranton, and reaches from near Scranton avenue down to about eighty or a hundred yards; when the train got below Scranton avenue, he got off the train and replaced the switches which had been opened by the front brakeman and the train had crossed over; the train had gone on and he could not reach it. It was his duty to join his train when and where he could; and if it was coming back, to wait there until it came back. If it did not come back it was his duty to approach and rejoin it; he was authorized to use the north bound track and always used it. The usages of brakemen at that particular point were, after closing a switch and their train was in sight, to take the track by the nearest course to get the train. “ I walked on to Scranton avenue crossing to where the watchman stood, and I expected my train to come from Scranton again after leaving a few cars; I staid until I saw them going over the bridge, and when they got at the ‘ hill switch’ they ran in there and stayed; at that time I stepped from Mr. Dacy out on the track and looked both ways when going on the track, and I saw nothing coming at that time; I saw tbe track was clear at that time; saw nothing on the northern bound track; there was an empty train on the southern hound track, passing ; then I proceeded a distance; 1 cannot tell the exact distance. * * * I proceeded towards the ‘ hill switch ;’ I did not do anything nor hear anything at all; was knocked down just about that time; I was knocked dowm probably half a second, and some man ‘hollered;’ * * * and that was all I-heard ; I was dragged quite a distance, and dragged into this gully and laid there.” The train which struck him was a “wild-cat” train belonging to the defendants; the schedule gives such trains a right on the tracks after certain hours of the day. He stood at tbe watchhouse to wait for his engine in case others should come along the track ; he was to hold them till his was out of the way ; where he was struck was about one hundred and sixteen feet from the watchhouse; there was no bell nor whistle sounded, except on the southern bound engine. On cross-examination he said it was doubtful whether he could have walked with safety between the two tracks; he could have walked on the southern side of the track;' but the train was between him and that side; when he first saw the south train it was between him and the “ hill switch;” this train had not passed him when he was struck. He further testified as to the extent of his injuries,,the continue anee of his sickness, expenses, &c. There was evidence also from several witnesses that no signal of the coming of the train was given, that it was going at a high rate of speed, &c. The defendants gave evidence that signals were given; that the train was going at the rate of five or six miles an hour, &c.; that the plaintiff stepped on the track just before the engine and just as he stepped there the engine struck him; when he came out of the watehhouse the engine was about fifteen or twenty feet distant ; plaintiff was about four feet from the engine when h,e stepped over the rail; he was halloed at by the brakeman of the train as soon as he stepped on the track. Also : that a man could stand with safety between the two tracks whilst two trains were passing each other. The following are points of the defendants and their answers-:— 5. If plaintiff was not an employee of the company using the railroad, then, under the rule of Railroad v. Norton, he had no right whatever to be on the track, and his presence there was of itself negligence which concurred in producing the injury; and he cannot recover. Answer : “ This point we cannot affirm. If you find that he was improperly on the track, or there without exercising reasonable caution, brakeman though he was, then, of course, he cannot recover. But this is a question of fact for you under all the testimony in the case.” 6. Under the provisions of the first -section of the Act of 4th April 1868, the plaintiff has no right of action and recovery against the defendant, other than would exist if the plaintiff had been an employee of the defendant at the time of the accident, and is, therefore, not entitled to recover. Answer: “We decline to affirm this proposition.” 8. It was negligence on the part of the plaintiff to be on the track, and there can, therefore, be no recovery in the case, even though there may have been negligence on the part of the company’s employees. A-nswer : “ We have already said to you, and we repeat it, that it is for you to determine, under the testimony of Mr. Gaynor, under the testimony of the conductor, and under the testimony of Mulherrin himself, whether the latter negligently went upon that track, knowing, as he did, of these particular trains, and the right of the defendant to run them. If you shall find that he did, then he would not be entitled to recover. In determining, however, as to this, -it is 'your -duty 'to .consider every fact and circumstance brought to your notice by the witnesses in the case on the one side and the other. Such is our answer to this point.” 9. As plaintiff was an employee on the railroad, well acquainted with the running of the trains, and therefore bound to exercise a high degree of care, it was negligence on his part to walk on the track on which he knew trains were constantly running, so as to approach him in a direction in which he could not see them, and he’ is therefore not entitled to recover. “ Our answer to this point may be stated thus: If any other person than a brakeman had gone upon that track, as the plaintiff admits he did, unquestionably it would have been negligence per se; and if such person had been. run down, it would have been the fruit of his own folly, and he could not recover. Whether the plaintiff was guilty of negligence, or not, is for you to determine, in view of all the evidence in the case, amongst which is the fact that he was a brakeman, and that it was his duty to close the switches near the watchhouse, his train moving on meantime, and the further fact that he was seeking to join it -when he was struck, though with full knowledge on his part that the defendant was running trains every hour in the day over the road at that point.” By the first section of the Act of 4th April 1868, Pamph. L. 58, 2 Br. Purd. 1094, pi. 5 : “ When any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company, or in or about any train or car therein or thereon, of which company such person is not an employee,, the right of action and recovery in all such cases against the company shall be such only as would exist if such person were an employee.” The verdict was for the plaintiff for $4000. The defendants took a writ of error; they assigned for error the answers to their points.