Balt. & Ohio R. Co. v. Colvin, 118 Pa. 230 (Pa. 1888)

Opinion,

Mr. Justice Williams :

The controlling question in this case, is that raised upon the-act of April 4,1868. That act provides that in case an injury is sustained by any person “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, provided that this section shall not apply to passengers.”

The plaintiff in the court below was a teamster, and on the day of the accident engaged in hauling iron to a car in the yard of the defendant company for shipment. The yards and depots of the company in Pittsburgh are between Water street and the Monongahela river. The buildings used as waiting-rooms and freight houses extend along the south side of Water street, continuously from Grant street to Ross, and from Ross-street to Try. The main tracks and sidings are between these buildings and the bank of the river. Access to the yard is therefore by passing down Ross- street, between the warehouses of the company. Between the line of Water street and the river there are nine railroad tracks ; and the distance is about two hundred and fifty feet. At the bank of the river there is no bridge, ferry, wharf, or other structure, but the ground is occupied by the company. That part of Ross street therefore between the south line of Water and the river is chiefly used as a means- of reaching the yard or freight cars of the defendant, and is practically a part of the yard.

The car to which Colvin was hauling iron on the day of the accident, stood on a track near the bank of the river, and about seventy-five feet west of the line of Ross street. In order to reach it, his route was down Ross street, a distance of about one hundred and fifty feet, crossing five or six tracks,, and then turning west along what was known as the coke track, a distance of perhaps seventy-five feet more. He had

turned into Ross street, crossed three or four of the tracks and reached another one when his wagon was hit by a moving passenger car and overturned, and he received the injury complained of. The company defended under the act of 1868, and upon the alleged contributory negligence of Colvin. Our first inquiry is whether the act of 1868 is applicable to this case.

This, in view of the uncontroverted facts, was for the court to determine. Colvin was not an employee of the railroad company. He was not a mere traveler upon the highway passing over these tracks to reach his destination beyond the yard of the company. He was not a passenger making his way to or from the cars of the defendant by the route provided for that purpose. He was there as the employee of a shipper of freight for the purpose of delivering his employer’s goods at the car into which they were to be loaded for transportation by the defendant. His position is exactly described by the statute. He was “ lawfully engaged or employed on or about the roads, works, depots and premises of a railroad company,” and about a “ car therein or thereon.” His employment about the premises and the cars of the defendant, in connection with the delivery and shipment of his employer’s goods, is as clear as though he had been an employee of the railroad company engaged in loading freight into its cars. It is of the same nature, involves the same risks, and requires the same care on his part. The act of April 4, 1868, puts all persons so employed upon the same ground so far as their right to recover for an injury is concerned, whether they are the employees of the railroad company or of its patrons. The work of handling freight about the yard and cars of a railroad exposes the workman to dangers against which he must guard; and since the act of 1868 the question is not for whom he is employed, but what is the nature of his employment. If engaged in the hazardous work of delivering freight, or loading or unloading cars, or moving them from place to place for that purpose, it is no' longer material for whom the labor is being performed. A railroad company does not owe to its employees or other persons employed about its cars and yard the same degree of care that is due to the public at street crossings, or places of exposure. It cannot be required to keep a watchman at every point in its own yards where an employee or a handler of freight may have occasion to cross its tracks or sidings; and if

the plaintiff below had been the teamster of the railroad company engaged in hauling the same load to the same car, and been injured in the same manner, it would not be contended that he could recover. The act of 1868 places him in the same situation as though he had been in the employment of the defendant. He, knew, or was bound to know, the uses to which the tracks were necessarily put in the business of the company. He knew that the making up of trains and the shifting of cars for purposes of loading and unloading were constantly going on in the defendant’s yard. He knew that the numerous tracks to be crossed were built and used for such purposes, and it was his duty to exercise care proportionate to the dangerous character of his. employment. This he made no effort to do. Under all the evidence in this ease we think the act of 1868 was an answer to the plaintiff’s action.

It was also error to admit the evidence offered to show that the flagman had the reputation of being a careless and incompetent person for the place. He may have had a very bad reputation and yet have discharged his duty faithfully on this occasion. The question was, what did he do ? how did he discharge his duty at this time ? What he had done or left undone on former occasions was wholly immaterial and irrelevant, and the only effect of the admission of the evidence objected to was, to excite the prejudices of the jury against the flagman and his employer, and so indirectly and improperly impeach his credit and injure the defendant.

The second point submitted by the defendant below should have been affirmed without qualification. The proposition that the contributory negligence of the plaintiff is an answer to his action to recover damages for an injury, is too well settled to require the citation of authorities. If then, as the defendant below alleged, and as the overwhelming balance of the testimony shows, the flagman signaled Colvin as he was leaving Water street to stop, and in disregard of the signals he continued to urge his team forward upon the tracks of the company and was injured, he was guilty of contributory negligence and could not recover. But under the view we have taken of the act of 1868, the discussion of the other questions involved becomes unimportant.

Judgment reversed.