PETERS V. BESSEMER & L. E. R. Co.

(Supreme Court of Pennsylvania, June 22, 1909.)

[74 Atl. Rep. 61.]

Master and Servant-Injury to Servant-Negligence of MasterEvidence. A railroad company is not guilty of negligence in the construction of a switchyard because at certain points the cars could not clear.

Death-Damages-Maintenance of Infant-Evidence. In an action for damages for killing of a boy under age, some proof of the probable cost of maintenance during minority is indispensable, in order that the item should be deducted from his probable earnings, to establish the real damages.

Appeal from Court of Common Pleas, Erie County.

Action by Margaret Peters against the Bessemer & Lake Erie Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

The circumstances of the accident are stated in the opinion of the Supreme Court. The defendant submitted the following points: "(6) There is no evidence to justify the submission to the jury of the question of the negligence of the defendant as to the construction of the tracks in the yard of the defendant company. Answer: Refused." "(9) Even if the evidence showed negligence on the part of the defendant company in regard to one or more of the allegations made in the plaintiff's statement, the evidence shows that neither of said alleged acts of negligence on the part of the defendant company was the proximate cause of the accident, and that the proximate cause of the accident was the negligence of some one or more of the fellow servants of the plaintiff's son, for which the defendant company was not liable. Answer: Refused. We refer the question of proximate cause to the jury.” "(11) The burden was upon the plaintiff to show what the net earnings of her son would probably be during minority. She has not shown what the cost, or probable cost, of his board, clothing, and maintenance during minority would be, and there is no evidence upon which the jury can base a calculation of his net earnings. They cannot be permitted to guess at the probable cost of his board, clothing, and maintenance, and the verdict therefore should be for the defendant. Answer: Refused. The jury cannot guess at anything. You will have to find that from the evidence. The evidence shows that the young man was earning about $70 a month, but I say to you, as I have already explained, that his mother could not recover his full earnings, but only so much as would have gone to her benefit. You will have to find that from the evidence and

Peters v. Bessemer & L. E. R. Co

the circumstances in the case, considering the young man's age and the circumstances as developed by the testimony. (12) Under all the evidence the verdict of the jury should be for the defendant. Answer: Refused."

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, and POTTer, JJ.

Frank Gunnison, John S. Rilling, Henry E. Fish, E. S. Templeton, S. J. Orr, and T. C. Whiteman, for appellant.

U. P. Rossiter, for appellee.

BROWN, J. Herbert Peters, the son of the appellee, was in the employ of the appellant as a brakeman, and shortly after he was 17 years old was killed, while riding on the tender of a locomotive in a switchyard, by being struck or "side-swiped" by a car on an adjoining switch. In the yard in which he was killed a number of switches or tracks branched south from a "ladder" track on the north for a distanct of upwards of 1,500 feet. A locomotive had entered from the "ladder" track upon the track or switch known as No. 24, for the purpose of taking 10 cars from it to another track in another part of the yard. When the locomotive entered upon track No. 24, the deceased was riding. in the gangway between the engine and the tender. After the cars were coupled to the locomotive, it backed towards the north, and Peters, who had changed his position and was standing on the end of the tender, came into collision with a car standing on track No. 25, and was instantly killed. There was a recovery by the plaintiff, under instructions that she was entitled to recover if the jury should find that the proximate cause of her son's death was either the bad construction of the system of tracks in the switchyard or want of proper instructions to him, and he had not been guilty of contributory negligence.

The only testimony upon the question of the defendant's negligence in the construction of its switches was that of Jesse Supplee, a civil engineer, but, when properly scanned, it fails to show faulty construction. The only difference between the construction of the appellant's switchyard and others that the witness had seen was in the distance from the frog to the point of clearance. Here the distance was 100 or 110 feet; in some others that the witness had seen it was about 60 feet. He admitted that switches are frequently constructed with the point of clearance as distant as in the defendant's yard, when it is desirable or necessary to save ground. It did not require the testimony of this witness to show that either system is safe after the clearance point is reached. Any system is dangerous from the frog to that point, and none can be said to be faulty in construction merely because of the distance of the point of clearance. The witness further stated that switches are deceptive as to the point of clearance, but that after dark there is no difference between them in this

Peters v. Bessemer & L. E. R. Co

respect. Peters was killed after it was fully dark, and the yard was not lighted up. The sixth point submitted by the defendant should have been affirmed. As authority for the court's refusal to affirm it, appellee's counsel seem to rely upon Vorhees v. Lake Shore & Michigan Southern Ry. Co., 193 Pa. 115, 44 Atl. 335, but that case is clearly distinguishable from the present one so far as any faulty construction of tracks is concerned. In switchyards there must be points where cars will not clear. Vorhees was not injured in such yard. He was hurt while riding on one of two parallel sidings, between which, at the point where he came in contact with the car on the adjoining siding, the distance between the tracks ought to have been, according to the regulations, from 7 feet to 7 feet 2 inches, but were so constructed as to leave only from 5 feet to 5 feet 6 inches between them. He had never been on that siding beforc, and had no knowledge that the space between it and the next one was so

narrow.

Though the defendant's eleventh point could not have been affirmed as a whole, complaint is justly made that the jury were permitted to guess at the probable cost of boarding and clothing the deceased during his minority.. The instructions were that they would have to find this item from the evidence, and could not guess at it, but there was not a particle of evidence as to what the probable cost of the son's maintenance would be. The jury, therefore, simply did guess. This must not be permitted on the new trial, for some proof of the probable cost of maintenance during the minority is indispensable in an action like this for damages by the parent.

On question of the failure of the appellant to properly instruct the deceased as to the danger incident to moving cars in the switchyard the case was for the jury, for the evidence failed to show that he was familiar with the construction at the north end of the switches, where he was killed, or that he knew at what point there would be a clearance between the tracks. But for the two errors pointed out, this judgment would be affirmed. In all other respects the case was submitted to the jury under correct instructions.

Judgment reversed, and venire facias de novo awarded.

ST. LOUIS, I. M. & S. R. Co. v. WHITE.

(Supreme Court of Arkansas, Jan. 17, 1910.)

[125 S. W. Rep. 120.]

Master and Servant-Injury to Servant-Noncompliance with Statutes.*-A railroad company is liable for the killing of its brakeman by the derailment of its engine from striking a cow on the track, the servant not assuming the risk from the master's failure to comply with statutory requirements for his protection, the locomotive not being equipped with a headlight of 1,500 candle power, as required by Act May 28, 1907 (Acts 1907, p. 1019) § 1, but with a coal oil headlight; the statutory requirement that railroads keep a constant lookout for objects on the track being also for the benefit of employees as well as others, and the evidence warranting the jury in finding that, had the engine been equipped as required by the statute, the engineer, who did not see the cow, could, if keeping a lookout, have seen her in time to have stopped the train, or to have checked it so as to avoid the derailment and resulting injury.

Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.

Action by Laura C. White against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lovick P. Miles, for appellant.
Sam R. Chew, for appellee.

HART, J. This is an appeal by the St. Louis, Iron Mountain & Southern Railway Company from a judgment rendered against it in the Crawford circuit court in favor of Laura C. White. John W. White was in the service of the defendant as brakeman, and was killed by the derailment of one of its trains at Menifee, Ark. The occurrence took place in the nighttime, and the train was running at the rate of 20 or 25 miles per hour. White was on the engine, which was drawing about 23 loaded cars. When the train approached the switch at Menifee, the engine struck a cow. The pony trucks of the engine became derailed, and followed the main track until the train reached the switch, when the pony trucks followed the lead rails to the side

*For the authorities in this series on the question whether a railroad employee assumes the risks arising from the violation of an ordinance or statute prescribing precautions to be observed by his company, see foot-note of Chicago & E. R. Co. v. Lawrence (Ind.), 27 R. R. R. 652, 50 Am. & Eng. R. Cas., N. S., 652, where all those preceding it are collected; third foot-note of Cleveland, etc., Ry. Co. v. Powers (Ind.), 33 R. R. R. 563, 56 Am. & Eng. R. Cas., N. S., 563.

St. Louis, etc., R. Co. v. White

track and caused the engine to become derailed. It turned over and crushed the brakeman White to death. Appellee, the mother of the deceased sued appellant for damages on account of his death. John White died intestate. He was unmarried, and lived with his mother. The allegation of negligence upon which she recovered was the failure of the appellant to have the engine equipped with a headlight of 1,500 candle power, in compliance with the act of the Arkansas Legislature, approved May 28, 1907.

Section 1 of the act provides that railroads over 50 miles in length, operated in whole or in part in this state, shall be required to equip, maintain, and use, upon each and every locomotive being operated in road service in the state, a headlight of power and brilliancy of 1,500 candle power. Section 2 provides a penalty for the failure to comply with the terms of the act. Acts 1907, p. 1019. In the case of Johnson v. Mammoth Vein Coal Company, 88 Ark. 243, 114 S. W. 722, 123 S. W. 1180, 19 L. R. A. (N. S.) 646, the court held that the servant does not assume the risk of injury caused by the master's failure to comply with a statutory requirement for his protection. The statutory requirement that railroads shall keep a constant lookout for persons and property upon their tracks is also for the benefit of employees as well as others. St. Louis Southwestern Ry. Co. v. Graham, 83 Ark. 61, 102 S. W. 700, 119 Am. St. Rep. 112, and cases cited. "In an action against a railroad company by an employee to recover for damages received in an accident, negligence of the railroad company will not be presumed merely from the occurrence of the accident, but must be proved, and the burden is on the plaintiff to establish it." St. Louis & San Francisco R. Co. v. Wells, 82 Ark. 372, 101 S. W. 738; L. R. & Ft. Smith Ry. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808, 3 Am. St. Rep. 245. Tested by these rules of law, was the defendant liable under the facts disclosed by the record? The engineer testified that he did not see the cow before she was struck. His engine was equipped with a coal oil headlight. With it he could see "three or four or five hundred feet" ahead of him, and as much as 8 or 10 feet on either side. His train was from 500 to 700 feet long. The right of way where the injury occurred was clear and unobstructed, and the track was practically level.

The appellee adduced evidence tending to show that an electric headlight of 1,500 candle power would enable the engineer to see ahead for distance of 1,700 to 2,000 feet, and would throw light from one side of the right of way to the other; that the train running on a practically level track at the rate of from 20 to 25 miles per hour could have been brought to a stop at 1,100, and could be reduced 5 or 10 miles an hour in 600 feet; that cattle lay down on the track at night, as well as in the daytime. Although the evidence is not very satisfactory, we think the